Ordinance No. 12,753ORDINANCE NO. 12,753
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT
WITH KIT PROFESSIONALS, INC., FOR ENGINEERING SERVICES
ASSOCIATED WITH THE HUGH WOOD AND LITTLE MISSOURI LIFT
STATIONS PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN
IN AN AMOUNT NOT TO EXCEED SEVENTY -FIVE THOUSAND THREE
HUNDRED AND N01100 DOLLARS ($75,300.00); MAKING OTHER PROVISIONS
RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with
KIT Professionals, Inc., for engineering services associated with the Hugh Wood and Little Missouri Lift
Stations Project. A copy of the agreement is attached hereto, marked Exhibit "A," and made a part hereof
for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to KIT
Professionals, Inc., in an amount not to exceed SEVENTY -FIVE THOUSAND THREE HUNDRED
AND NO /100 DOLLARS ($75,300.00) for engineering services in accordance with the agreement
authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent
(25 %).
Section 4: This ordinance shall take effect immediately fr and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative v e f the y Council of the City of
Baytown this the 11 "' day of December, 2014.
A
H. DONCARLOS, Mayor
BRYSCH,
APPROVED AS TO FORM:
�s
o -C
NACIO RAMIREZ, SR., (0 Attorney
Rn.Karerr.Files%City Council .Ordinances\2014'.December 1 I \AuthorizeKITProfessionalServicesAgreement4Hugh Wood &LittleM issouriLiftStations.doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the _ day of November, 2014 ( "Effective Date ").
Between
City of Baytown ( "OWNER")
and
KIT Professionals, Inc. ( "ENGINEER")
OWNER intends to contract to provide professional engineering design, bid and construction phase services for the
Hugh Wood and Little Missouri Lift Stations replacement as detailed in the August 9, 2014 feasibility study
prepared by ENGINEER, including those services outlined herein ("Project). The Project shall entail the
engineering services associated with the following:
Hugh Wood Lift Station:
> Abandonment of the existing Hugh Wood Litt Station No. 42, located at 1801 Y2 Decker Drive, in place;
q Construction/installation of a new pre - fabricated two -pump grinder pump station located adjacent to the
existing manhole, which will be sized to convey 50 gallons per minute (gpm) through a 2 -inch diameter
force main;
Repair of the deflected coupling along the existing 4 -inch diameter force main over the Harris County
drainage channel and slip lining the existing 4-inch diameter force main with a 2 -inch diameter force main;
and
Installation ofcleanouts located every 200 feet along the route of the 4 -inch diameter force main.
Little Missouri Lift Station:
D Completion of a site evaluation of the Little Missouri Lift Station No. 34, located at 1419 Missouri Street,
where Little Missouri Street intersects New York Street, to determine the area required to accommodate the
proposed lift station;
Construction/installation of a new two -pump lift station to provide the sonic hydraulic capacity as the
existing lift station located adjacent to the existing lift station; and
Construction of an access driveway that will allow site access from Missouri Street.
Electrical services, Disconnects, and Control Panels: The electrical service, disconnect and control panel for each
lift station will be located above grade on a galvanized structural steel platform to protect the lift station system
from a 100 year flood and the predicted storm surge.
Site improvements. Each lift station area will be secured with a 6 foot tall perimeter security fence with double
strand barbed wire. An 8 -foot wide double panel swing gate will be provided for access. A concrete pad will be
provided adjacent to the proposed lift station and at the foot of the stairs. The existing lift station manhole will be
refurbished sufficiently that it can be sealed and made water resistant.
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 12
TABLE OF CONTENTS
ARTICLE l' SERVICES OF ENGINEER ..................................................
ARTICLE %'OWNER'S RESPONSIBILITIES .—_--_—.------'
2.0l General ............................................ ........................... ........
ARTICLE J- TIMES FOR RENDERING SERVICES ..................
3.0l General ....................... ................ ...................... ........
Page
.............. 3
3
.................................... 3
............................ ................................... 3
........_.........'......''......'..................._........ 3
ARTICLE 4- PAYMENTS TO ENGINEER .............................. _ ..................................................................................... 3
4.8l Methods mJ Payment for Services and Reimbursable Expenses uf ENGINEER ............................................ 3
ARTICLE- 1'OPINIONS OF COST ................................. ............................................................................ ... ..... ...... 4
5.01 Opinions uf Probable Couounobnn Cost _'_—_--------__—_---__—_.---4
5.02 Designing *v Construction Cost limit ............................................................................................................. 4
ARTICLE 6-GENERAL CONSIDERATIONS ................... ............................................................................................ 4
6.ul Standards nf9erf0000me ............................................................... ... ......................... ................................. 4
6.uZ Authorized Project Representatives ................................. ....... - ....................................... - ... ..... ............... 5
6.03 Design without Construction Phase Services ............................. - .................................................................... 5
6.04 Use of Documents ............................................................................................................................................. 5
8.05 Insurance ...................................................................................... .................................................................... 0
6.uG1&erininodvu ....................................................................................................................................................... 6
6.07 Controlling Law .................... .......................................................................................................................... 7
6.V8 Successors, Assigns, and Beneficiaries .................... ...................................................................................... 7
6.VV Dispute Resolution ............................................................................................................................................ 7
6l0 Hazardous, Environmental Condition ............................................................................................................... 7
6.1l Allocation of Risks ............................................................................................................................................ 8
6./Z Notices ......................................................................................................................... .................................... 8
6il3Survival .............................................................................................................................................................. 8
0il48m"=nbility ........................................................................................................................................................ 8
6.l5 Waiver ...................................................................................................................................................... ....... 8
ARTICLE7- DEFINITIONS - ......... ............................................................. ... ..................................... ..................... 0
ARTICLE 8-EXHIBITS AND SPECIAL PROVISIONS ....................................................................
8.01 Exhibits Included ..................................................................................................................
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
...........................
...........................
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. (modified) Upon issuance of a notice to proceed by
the OWNER, ENGINEER is authorized to begin Basic
Services as set forth in Exhibit A.
C. (Deleted).
ARTICLE 2 - OWNER'S
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and
compensation under this Agreement have been agreed to for
the design of the Project together with other services specified
in Exhibit A. ENGINEER's obligation to render services
hereunder will be for whatever .period necessary for the final
completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted)
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER. ENGINEER may
be entitled to equitable adjustment of rates and amounts of
compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
connection with, among other things, such delay or
suspension and reactivation and the fact that the time for
performance under this Agreement has been revised, unless
such delay or suspension is caused in whole or in part by the
ENGINEER, its officers, agents, or employees. If
ENGINEER causes or contributes to the delay or suspension,
ENGINEER shall have no right to seek additional
compensation.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished wider Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Grpenses. in
addition to payments provided for in paragraphs 4.01.A and
4.013, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals raid lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the ponies hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoimv. Invoices will be prepared
in accordmmce with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or email
by ENGINEER, unless otherwise agreed. ENGINEER shall
supply detailed back -up information along with each invoice
in order for the OWNER to effectively evaluate the Pecs and
charges. The amount billed in each invoice will be calculated
as set forth in Exhibit C. Invoices shall be received by the
OWNER not later than sixty (60) days from the date the
ENGINEER and/or its subconsultants perform the services or
incur the expense. Failure by ENGINEER. to comply with the
requirements herein in a timely nanner with this requirement
slmall result in the ENGINEER'S invoice being denied.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days alter the receipt of the invoice and
the necessary backup information. ICOWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and the
required backup documentation therefor, the amounts due
ENGINEER will accrue interest at the rate set forth in
Section 2251.025 of the Texas Government Code (or the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days' written
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. However, it is
expressly understood and agreed that ENGINEER will not
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and/or withheld in
accordance with paragraph 4.02 and that ENGINEER will not
suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
payments will be credited first to principal and then to
interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination. In the event of any
termination under section 6.06, ENGINEER will be entitled
to invoice OWNER and will be paid in accordance with
Exhibit C for all services performed or famished and all
Reimbursable Expenses incurred through the effective date of
termination provided all instruments of service have been
tendered to the OWNER..
2. (Deleted)
E. (Modified) Records of ENGINEER s Casts.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies or such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date or die Agreement by any level
or government drat impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 simll be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
G. (Added) Indebtedness. If ENGINEER, at any time
during the term of this agreement, incurs a debt, as the word
is defined in section 2 -662 of the Code of Ordinances of the
City of Baytown, it shall immediately notify the OWNER's
Director of Finance in writing. If the OWNER's Director of
Finance becomes aware that the ENGINEER has incurred a
debt, the OWNER's Director of Finance shall immediately
notify the ENGINEER in writing. If the ENGINEER does
not pay the debt within 30 days of either such notification,
the OV✓NER's Director of Finance may deduct funds in an
amount equal to the debt from any payments owed to the
ENGINEER under this Agreement, and the ENGINEER
waives any recourse therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions or probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. However,
since ENGINEER has no control over the cost of labor,
materials, equipment, or services furnished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids, or actual
Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER If OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provident in Exhibit B.
5.02 Designing to Construction Cost Limit
A. (Deleted).
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or rumished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINEER's profession
practicing under similar circumstances at the same time and in
the same locality.
B. (Modified) ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. ENGINEER shall correct
such deficiencies without additional compensation except to
the extent such action is directly attributable to deficiencies in
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
OWNER - furnished information upon which ENGINEER is
authorized to rely as provided in Section 6.01.13.
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. ENGINEER
may employ such ENGINEER's Consultants as ENGINEER
deems necessary to assist in the performance or furnishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINE M.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER - mandated
standards. This Agreement is based on these requirements as
of its Eti'ective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER'S responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, die accuracy and completeness
of all requu-ernents, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and cart' out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the terns of any such
requested notice or certification, and OWNER shall authorize
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested.
li. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify, guarantee or
warrant the existence of conditions whose existence
ENGINEER cannot ascertain; provided, that ENGINEER has
exercised due diligence and was not otherwise required to
certify, guarantee or warrant the existence of such conditions.
I. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility
for the means, methods, techniques, sequences, or procedures
of construction selected by Contractor, for safety precautions
and programs incident to the Contractor's work in progress,
nor for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's firmishing and
performing the Work
J. (Modified) ENGINEER neither guarantees the
performance of nny Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsiblc for
the acts or omissions of any Contractor(s), subcontractor or
supplier, or of any of the Contractor's agents or employees or
any other persons (except ENGINEER's own employees and
its consultants for which it is legally liable) at the Site or
otherwise firmishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Fornn of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorlred Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
party-
6.03 Design without Construction Phase Services
(Deleted)
6.04 Use of Documents
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees tit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER'S use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04. A shall be for the benefit of the ENGINEER,
its officers, and employees and sub - consultants, as well as
their successors and assigns.
B. (Modified) Copies of OWNER furnished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media fornuat of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived hum such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER am only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
deterred within the 60 -day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
peruse of the Documents.
G. If there is a discrcpancy between the electronic tiles
and the hard copies, the hard copies govern.
ti. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than tluose specified in Exhibit G. if
so requested by OWNER, with the concurrence of
ENGINEER, and if commercially available, ENGINEER
shall obtain and shall require ENGINEER's Consultants to
obtain such additional insurance coverage, different limits, or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
l . For cause,
a. (Modified) By either party upon 30 days
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating party; or
b. By ENGINEER upon seven days written
notice if ENGINEER is being requested by
OWNER to Furnish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure: to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof; provided, however, that if
and to the extent such substantial failure cannot be-
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the saute
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER .agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to ENGINEER that to the best
2. For conveniurce by OWNER eiiective upon the of its knowledge a Hazardous Environmental Condition does
receipt of notice by ENGINEER. not exist.
B. Not used. B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER We existence of all
6.07 Controlling Law Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
A This Agreement is to be governed by the law of the type, quantity and location.
state in which the Project is located. Venue for all purposes
shall be in I lards County, Texas. C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
6.08 Successors, Assigns, and Beneficiaries the obligation to notify OWNER on or before the next
business day of the same_
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.B the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," "operator," .. generator," or "transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Site in connection with ENGINEER's activities under this
Agreement.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indermnifncation. See Exhibit K.
B. (Added) Notwithstanding anything to the contrary
contained in this Agreement, the OWNER and ENGINEER
hereby agree that no claim or dispute between the OWNER
and ENGINEER arising out of or relating to this Agreement
shall be decided by any arbitration proceeding including,
without limitation, any proceeding under the Federal
Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable
State arbitration statute, including, but not limited to, the
Texas General Arbitration Act, provided that in the event
that the OWNER is subjected to an arbitration proceeding
notwithstanding this provision, ENGINEER consents to be
joined in the arbitration proceeding if ENGINEER'S
presence is required or requested by the OWNER for
complete relief to be recorded in the arbitration proceeding.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
or by a commercial courier service. Additionally, notices
may be given via facsimile or by electronic mail if such notice
is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severabfllty
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and ENGINEER, who
agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the
intention of the stricken provision.
6.15 Waiver
A. Non - enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
1. Addenda— Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
2. Additional Services —The services to be performed
for or furnished to OWNER by ENGINEER in accordance
with Exhibit A, Part 2 of this Agreement.
3. Agreemavrt -- This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8 hereof.
4. Apf)licadon for Payment --The form acceptable to
ENGINEER which is to be used by Contractor in requesting
progress or final payments for the completion of its Work and
which is to be accompanied by such supporting
documentation as is required by the Contract Documents.
5. Asbestos --Any material that contains more than one
percent asbestos and is friable or is releasing asbestos fibers
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
into the air above current action levels established by the
United States Occupational Safety and Health Administration.
6. Basic Services - -Tbe services to be performed for or
furnished to OWNER by ENGINEER in accordance with
Exhibit A, Part 1, of this Agreement.
7. Bid —The offer or proposal of the bidder submitted
on the prescribed form setting forth the prices for rite Work to
be performed.
8. Bidding Docrtn,ents- The advertisement or invitation
to Bid, instructions to bidders, the Bid fort and attachments,
the Bid bond, if any, the proposed Contract Documents, and
all Addenda, if any.
9- Change Orden --A document recommended by
ENGINEER, which is signed by Contractor and OWNER to
authorize an addition, deletion or revision in the Work, or an
adjustment in the Contract Price or the Contract Times, issued
on or after the Effective Date of the Construction Agreement.
10. Construction Agreement —The written instrument
which is evidence of the agreement, contained in the Contract
Documents, between OWNER and Contractor covering the
Work.
11. Construction Contract —The entire and integrated
written agreement between the OWNER and Contractor
concerning the Work
12. Construction Carl The cost to OWNER of those
portions of the entire Project designed or specified by
ENGINEER Construction Cost does not include costs of
services of ENGINEER or other design professionals and
consultants, cost of land, rights -of -way, or compensation for
damages to properties, or OWNER's costs for legal,
accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with flue
Project, or the cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement
Construction Cost is one of the items comprising Total
Project Costs.
13. (Modified) Contract Documents — Documents that
establish the rights and obligations of the parties engaged in
construction and include the Construction Agreement
between OWNER and Contractor and all documents
referenced therein, Addenda (which pertain to the Contract
Documents), Contractor's Bid (including documentation
accompanying the Bid and any post -Bid documentation
submitted prior to the notice of award) when attached as an
exhibit to the Construction Agreement, the notice to proceed,
the bonds, appropriate certifications, insurance documents
the General Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders, Work
Change Directives, Field Orders, and ENGINEER's written
interpretations and clarifications issued on or after the
Effective Date of the Construction Agreernettt Approved
Shop Drawings and the reports and drawings of subsurface
and physical conditions are not Contract Documents.
14. Contract Price —The moneys payable by OWNER to
Contractor for completion of the Work in accordance with the
Contract Documents and as stated in the Construction
Agreement
15. Contract Dines —The numbers of days or the dates
stated in the Construction Agreement to: (i) achieve Final
Completion, and (i7 complete the Work so that it is ready for
fatal payment as evidenced by ENGINEER's written
rccomtmndalion of final payment.
t6. Contractor - -An individual or entity with whom
OWNER enters into a Construction Agreement-
17. Correction Period—The time alter Final Completion
during which Contractor must correct, at no cost to OWNER,
any Defective Work, normally one year after the date of Final
Completion or such longer period of time as may be
prescribed by haws or Regulations or by the terns of any
applicable special guarantee or specific provision of the
Contract Documents.
18. Defective —An adjective which, when modifying the
word Work, refers to Work that is unsatisfactory, faulty, or
deficient, in that it does not conform to the Contract
Documents, or does not meet the requirements of any
inspection, reference standard, test, or approval referred to in
the Contract Documents, or has been damaged prior to
ENGINEER's reconuneudation of final payment.
19. Documents- -Data, reports, Drawings, Specifications,
Record Drawings, and other deliverables, whether in printed
or electronic media format, provided or furnished in
appropriate phases by ENGINEER to OWNER pursuant to
this Agreement.
20. Drawings —That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
perforated by Contractor. Shop Drawings are not Drawings
as so defined.
21. Effective Date of the Construction Agreement - -The
date indicated in the Construction Agreement on which it
becomes effective, but if no such date is indicated, it means
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
the date on which the Construction Agreement is signed and
delivered by the last of the two parties to sign and deliver.
22. Effective Date of the Agreement —The date indicated
in this Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
23. ENGINEER's Consultants— Individuals or entities
having a contract with ENGINEER to furnish services with
respect to this Project as ENGINEER's independent
professional associates, consultants, subcontractors, or
vendors. The term ENGINEER includes ENGINEER's
Consultants.
24. Field Orders -A written order issued by ENGINEER
which directs minor changes in the Work but which does not
involve a change in the Contract Price or the Contract Times.
25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subconitIICtors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and the
Project has been finally accepted by the OWNER.
26. General Canditions That part of the Contract
Documents which sets forth terns, conditions, and procedures
that govern the Work to be perforated or furnished by
Contractor with respect to the Project.
27 Hazardous En►7ronmental Condition- -The presence
at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste,
or Radioactive Materials in such quantities or circumstances
that may present a substantial danger to persons or property
exposed thereto in connection with the Work.
28. 116:ordous Waste —The terns Hazardous Waste shall
have the meaning provided in Section 1004 of the Solid
Waste Disposal Act (42 USC Section 6903) as amended from
time to time.
29. Laws and Regulations; Laws or Regulations —Any
and all applicable laws, rules, regulations, ordinances, codes,
standards, and orders of any and all governmental bodies,
agencies, authorities, and courts having jurisdiction.
30. PCB's — Polychlorinated biphenyls.
31. Petroleum — Petroleum, including crude oil or any
fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute), such as oil, petroleum, fuel
oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed
with other non - Hazardous Waste and crude oils.
32. Radioactive Materials -- Source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of
1954 (42 USC Section 2011 et seq.) as amended from time to
time.
33. Record Drawings —The Drawings as issued for
construction on which the ENGINEER, upon completion of
the Work, has shown changes due to Addenda or Change
Orders and other information which ENGINEER considers
significant based on record documents furnished by
Contractor to ENGINEER and which were annotated by
Contractor to show changes made during construction.
34. Reimbursable Expenses —Tlte expenses incurred
directly by ENGINEER in connection with the performing or
furnishing of Basic and Additional Services for the Project for
which OWNER shall pay ENGINEER as indicated in Exhibit
C.
35. Resident Project Representative—Tlre authorized
representative of ENGINEER, if any, assigned to assist
ENGINEER at the Site during the Construction Phase. The
Resident Project Representative will be ENGINEER's agent
or c,�mployee and under ENGINEER's supervision. As used
herein, the term Resident Project Representative includes any
assistants of Resident Project Representative agreed to by
OWNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
36. Samples— Physical exnruples of materials,
equipment, or workmanship that are representative of some
portion of die Work and which establish the standards by
which such portion of the Work will be judged.
37. Strop Drawings —All drawings, diagrams,
illustrations, schedules, and other data or information which
are specifically prepared or assembled by or for Contractor
and submitted by Contractor to ENGINEER to illustrate some
portion of the Work.
38. Site —Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which the
Work is to be performed, rights -of -way and easements for
access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
39. Specifications—That part of the Contract Documents
consisting of written technical descriptions of materials,
equipment, systems, standards, and workmanship as applied
to the Work and certain administrative details applicable
thereto.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
40. Substantial Completion —The time at which the
Work (or a specified part thereof) has progressed to the point
where, in the opinion of ENGINEER, the Work (or a
specified part thereof) is sufficiently complete, in accordance
with the Contract Documents, so that the Work (or a specified
part thereof) can be utilized for die purposes for which it is
intended. The terms "substantially complete" and
'.substantially completed" as applied to all or part oft he Work
refer to Substantial Completion thereof.
41. Supplementary Conditions - -That part of the Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) Total Project Costs —The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of ENGINEER or other design professionals
and consultants, cost of land, rights -of -way, compensation for
damages to properties. OWNER's costs for legal, accounting,
insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project, and
the cost of other services to be provided by others to OWNER
pursumit to Fxhibit B of this Agreement.
43. Wink —The entire completed construction or the
various separately identifiable parts thereof required to be
provided under the Contract Documents with respect to this
Project. Work includes and is the result of performing or
furnishing labor, services, and documentation necessary to
produce such construction and furnishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44, Wnrk Change Directive —A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing
or unforeseen subsurface or physical conditions under which
the Work is to be performed or to emergencies. A Work
Change Directive will not change the Contract Price or tie
Contract Times but is evidence that the parties expect that the
change directed or documented by a Work Change Directive
will be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if any, on
the Contract Price or Contract Times.
45. Written Amendment - -A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - engineering or non - technical
rather than strictly construction - related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
six (6) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to ENGINEER for Services
and Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative," is not used.
E. Exhibit E, "Notice of Acceptability of Work," is
consisting of two (2) pages.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit 13, "Dispute Resolution," is not used.
I. Exhibit 1, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indenmification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages I to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings. This Agreement may only be amended.
supplemented, modified, or canceled by a duly executed
written instrument This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN ENGINEER: KIT PROFESSIONALS, 1 1W..
Signature: Signature-
---------___
Printed Name: Robert D. Leiner Printed Name: 7,—r -e ,'1' 5-4, vu, k
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02A):
Name: Jose A. Pastrana, P.E.
Title: Director of Engineering
Phone Number: (281) 420 -7154
Facsimile Number. (281) 420 -6586
E -Mail Address: jose.pastrana a baytown.oTa
Title: �+ o r V, C-e- tli41-.-
Date Signed
Address for giving notices:
2000 W. Sam Houston Pkwy S., Suite 1400
Houston, Texas 77042
Designated Representative (paragraph 6.02.A):
Name: ��..•7' L-5—%v w/L
.rifle: '51111 j o r- V1 c. -e- �Ces �-�•fi
Phone Number: (713) 783 -8700
Facsimile Number: (713) 783 -8747
E -Mail Address: ' /a v --fir-a Kt -t—o r--P-s . Ga M
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 6 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINE " ,..
ENGINEER's Services
Article t of the Agreement is amended and supplemented to include the following agreement of die parties_
ENGINEER shall provide Basic and Additional Services as set forth below.
PART I — BASIC SERVICES (Modified)
ALAI Preliminary Design Phase
(not used)
A1.02 Fuial Design Phase
A. Upon written authorization from OWNER, ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements Ibr the Project and available data.
2. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including, but
not limited to, the Texas Commission on Environmental Quality and Harris County Flood Control
District.
3. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEEWs judgment meet OWNER's
requirements for the Project.
4. (Modified) Attend meetings with OWNER to receive input into OWNER'S requirements for the
Project and evaluation of potential solutions available to OWNER and to discuss design criteria and
acquire pertinent information regarding the Project.
S. (Modified) Prepare final drawings indicating die scope, extent, and character of the Work to be performed
and furnished by Contractor. Specifications will be prepared, where appropriate, in conformance with the
16- division, modified threc -part format of* (he Construction Specifications Institute or other format agreed
to in writing by OWNER and ENGINEER. The drawings shall at a minimum include the following-
a. Cover Page and Index;
b. General Notes;
c. Little Missouri Lift Station No. 34 Overall Project Layout and Details;
d. Little Missouri Lift Station No. 34 Lift Station Plan and Section,
e. Hugh Wood Lift Station No. 42 Overall Project Layout and Details;
f. Hugh Wood Lift Station No. 42 Plan and Section;
g. Hugh Wood Lift Station No. 42 Force Main Plan and Details;
h. Structural General Notes and Details;
i. Structural Plans and Sections;
j. Electrical Service and Utility Rack;
k. Typical Details I; and
1. Typical Details II;
Page I of 6 Pages
(EXHIBIT A - Scope of Work)
6. Provide technical criteria, written descriptions, and design data for OWNEWs use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of the opinion of probable Construction Cost and Total Project Costs known to
ENGINEER.
4. (Modified) Attend meetings with, participate in conference calls with and prepare presentations for
OWNER and other applicable agencies, utility owners, pipelines, railroads, and other affected
stakeholders to review design details, to discuss and finalize design issues, and to coordinate the
Project.
5. Perform or provide the following additional final Design Phase tasks or deliverables:
a. prepare an EOPCC in accordance with the AACE guidelines for a Class 2 estimate;
b. coordinate the review and approval of drawings and specifications with the TCEQ and Harris
County Flood Control District.
c. Prepare for and attend project status meetings with the OWNER.
d. Retain a geotechnical engineer subconsultant registered in Texas to conduct a gcotechnical
investigation to determine the subsurface conditions and construction requirements for foundation
design, groundwater control, and trench safety and provide a signed and sealed geotechnical
report. A total of one boring, 30 foot deep, is anticipated for each lilt station site.
e. Retain a registered professional land surveyor registered in Texas to conduct a topographic site
survey to determine the site elevations and flood plain of the project area, including the force main
route and provide a survey control and drawings signed and scaled by the subconsultant.
6. Furnish tlu-e (3) review copies and one electronic copy in a format approved by the OWNER of the 60%
submittal to OWNER within sixty (60) calendar days of authorization to begin final design services and
review die report with the OWNER. The 60% submittal shall include the submittal of the plan and
profile sheets along with the quantity take offs and an opinion of probable construction cost for the
Project and any other information required in Section 1.02.A.5. Review copies shall include the
following:
> Three (3) half size (I Ix 17) copies of design drawings;
Three (3) copies of the Technical Specifications; and
D One (1) copy of the EOPCC.
7. Revise the 600/6 submittal in response to OWNER's and other parties' comments, as appropriate, and
incorporate such revisions in the 9MA Bidding Documents.
S. Furnish three (3) review copies and one electronic copy in a format approved by die OWNER of the 90%
submittal, including Bidding Documents, along with a revised opinion of probable Construction Cost to
OWNER within ninety (90) calendar days of authorization to begin final design services and review it
with OWNER. Review copies shall include the following:
Three (3) half size (11x17) copies of design drawings;
➢ Three (3) copies of the Technical Specifications;
D One (1) copy of the EOPCC;
D One (1) copy of the design drawings (full size) and technical specifications submitted to the IIanis
County Flood Control District; and
➢ One (1) copy of the design drawings (full size), technical specifications, and letter report
submitted to TCEQ.
9. Revise the 90% submittal in response to OWNER's and other parties' continents, as appropriate, and
incorporate such revisions in the 100% Bidding Documents.
10. Furnish three (3) review copies and one electronic copy in a format approved by the OWNER of the
100% Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as
appropriate within one hundred (100) calendar days of authorization to begin final design services and
Page 2 of 6 Pages
(EXHIBIT A - Scope of Work)
review it with OWNER, review it with OWNER, and assist OWNER in the preparation of other related
documents.
11. Revise the 100% Bidding Documents in response to OWNER's and other parties' comments, as
appropriate, and submit 15 final sets of Bid Documents in pdf format on compact disks and an updated
opinion of probable Construction Cost to OWNER within one hundred twenty (120) calendar days after
authorization to proceed with this phase.
B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more
than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more
prime Contractors (such as in the case of fast- tracking), OWNER and ENGINEER shall, prior to commencement of the
Final Design Phase, develop a schedule for performance ofENGINEER's services during the Final Design, Bidding or
Negotiating, Construction, and Post - Construction Phases in order to sequence and coordinate properly such services as
are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or
become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by ENGINEER upon which die ENGINEER's
compensation has been established under this Agreement is one (1).
D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A L02.A have been delivered to and accepted by OWNER and all regulatory
authorities have approved the same.
A1.03 Bidding or Nagoriaring Plrase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the final Design Phase and upon written authorization by OWNER to
proceed, ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids for the Work.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. (Modified) Conduct the Mandatory Pre-Bid Conference and prepare summary of pre -bid meeting minute
for the project and distribute to all prospective bidders.
5. (Modified) Attend the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist
OWNER in both evaluating Bids or proposals, recommend award to OWNER, as appropriate, and assist
in awarding contracts for the Work.
G. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall:
Page 3 of G Pages
(EXHIBIT A - Scope of Work)
1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree: in writing. All of OWNER's instructions to
Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in rite selection of an
independent testing laboratory to perform testing services, if any
3. Pre - Construction Conference. Prepare a Pre - Construction Conference agenda and conduct a Pre -
Construction Conference prior to commencement of Work at the Site. Prepare and provide a
sunuuary of the Pre-Construction Conference minutes for the project and distribute it to all parties
4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating
the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In counection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction,
and as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and
qualified design professional the progress and quality of the Work. Such visits and observations
by ENGINEER, and the Resident Project Representative, if any, are not intended to be
exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed
inspections of Contractor's work in progress beyond the responsibilities specifically assigned to
ENGINEER in this Agreement and due Contract Documents, but rather are to be limited to spot
checking, selective sampling, and similar methods of general observation of lice Work based on
ENGINFER's exercise of professional judgment as assisted by the Resident Project
Representative, if any. Eased on information obtained during such visits and such observations,
ENGINEER will determine if Contractor's work is proceeding in accordance with the Contract
Documents, and ENGINEER shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative, if'any, at the Site, will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
professional, to provide for OWNER a greater degree of confidence that die completed Work
will substantially conform to the Contract Documents and that the integrity of the design concept
of the completed Project as a functioning whole as indicated in the Contract Documents has
been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as
a result of such observations of Contractor's work in progress, supervise, direct, or have control
over Contractor's work., nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of construction selected by Contractor,
for safety precautions and programs incident to Contractor's work, or for any failure of
Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. Accordingly, ENGINEER neither guarantees the performance of any
Contractor not assumes responsibility for any Contractor's failure to furnish and perform its
work in accordance with the Contract Documents.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
Page 4 of 6 Pages
(EXHIBIT A - Scope of Work)
7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from thee
requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Strop Drmvings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of mite completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be far the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of die Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
t2. Perform or provide the following additional Construction Phase tasks or deliverables:
a, prepare progress meeting agendas and meeting minutes for progress meetings
13. (Modified) Disagiremenis between O;VA R and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and
progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show
partiality to OWNER or Contractor.
14. Applications for Payment. (Not used).
15. Contractor's Completion Documents.
a. (Not used)
b. (Not used)
c. (Not used)
d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved
by the OWNER showing appropriate record information based on Project annotated record
documents received from Contractor.
Page 5 of 6 Pages
(EXBELBBI I' A - Scope of Work)
16. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work') that to
the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due
diligence, die Work is acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Se vices Regmiiing OWNER's Authorization in Aamance
A. Upon written authorization from OWNER, ENGINEER shall retain a surveyor and True Attorney for the
following scope of work:
1. Prepare a property survey plat with abstractors report,
2. Perform title research to obtain ownership interest, identify any title encumbrance, mid ensure proper
closing and transfer of the title;
3. Perform appraisals of the property to value the parcel for right -of -way acquisition. The appraisal will be
conducted in conformance with die Uniform Standards of Professional Practice (USPAP).
A2.02 Required Additional Sem ices
Not Included
Page 6 of 6 Pages
(EXHIBIT A - Scope of Work)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, Space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard
forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in
which the existing data and documentation will be provided shall be at the sole discretion of the OWNER-
C. (Modified) Following ENGINEER's assessment of initially- available Project information and data and upon
ENGINEER's written request, fumish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
I. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Pan 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
Page 1 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
H. (Deleted).
I. (Deleted).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructability review.
K Deleted
L. Deleted
M. Deleted
N. Deleted
Page 2 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of the
parties:
ARTICLE 4 -- PAYMENTS 1*0 THE ENGINEER
C4.01 For Basic Services HavingA Determined
Scope —Cost not to Exceed Method of Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $57.900.0 0. based upon the rate
schedule, which is attached as Appendix 1 of
Exhibit C and incorporated herein for all intents and
purposes. This amount does not include those
ENGINEER'S Consultant's charges as provided
below in this Article 4, Subparagraph C4.05, and
will be distributed at the completion of each of the
phase in the following amount:
a. Design Phase ............ ........................$38,300
b. Bid Phase ................... .........................$2,300
c. Construction Phase ... ........................$17,300
2. Deleted.
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. Deleted.
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period, which shall be a calendar month. Invoices
shall be tendered no more often than once a month
for all of the services performed during the
applicable month.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. (Not Used).
04.03 For Additional Services
A. OWNER shall pay ENGINEER for Additional
Services as follows:
1. Genet-al. For services of ENGINEER's
employees engaged directly on the Project pursuant
to paragraph A2.01 or A2.02 of Exhibit A of the
Agreement, except for services as a consultant or
witness under paragraph A2.01.A.13, an amount
based upon the actual hours worked and the rate
schedule, which is attached as Appendix 1 of
Exhibit C and incorporated herein for all intents and
purposes plus Reimbursable Expenses. Additional
Services shall not be performed without the prior
written consent of the OWNER.
C4.04 For Reimbursable Erpenses
A. (Modified) When not included in compensation
for Basic Services under paragraph C4.01, OWNER
shall pay ENGINEER for Reimbursable Expenses as the
rate set forth in Appendix 2 of this Exhibit C. Before the
OWNER shall be liable for any reimbursable expenses,
the ENGINEER must obtain prior written approval of
the OWNER of any expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Reimbursable Expenses shall not exceed $2,000.
B. (Modified) Reimbursable Expenses include the
following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items in
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope — Cost not to exceed Method)
addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to ENGINEER for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter multiplied by
a Factor of (1.t0). Travel, meals, mileage. rental cars,
and like expenses are not subject to the 1.10 Factor.
D. Deleted.
E. (Added) The OWNER must approve all travel
expenses before the same are incurred. If such approval
is not obtained, the OWNER shall not be liable for such
travel expenses.
04.05 ForENGINEER's Co»sttltatit's (,7tat7;es
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
LNGINEER times a Factor of (1.1Q). The consultant
charges shall not exceed the following amounts specified
for each of the following services, unless approved in
writing by the OWNER. The charges include the factor,
and shall not exceed the following without prior written
consent of the OWNER.
Final Design Phase
Geotechnical Services ........................$7,500
Surveying Services .... .........................$5,500
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and wages
paid to ENGINEER's employees but does not include
payroll related costs or benefits.
B. (Deleted).
4.07 Factors
(Deleted)
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
identified in paragraphs C4.01 and C4.03, will be
based on the Direct Labor Costs for the cumulative
hours charged to the Project during the billing
period by all of ENGINEER's employees, plus
Reimbursable Expenses and ENGINEER's
Consultant's charges, if any.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C — HOURLY RATES
Hourly Rates for ENGINEER'S Staff.
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
Pro'ect Principal
MIEREN
$240.00
Project Mann er
$216.00
Project En veer
$135.00
Graduate En ineer
$84.00
Admin. Assistant
$69.00
Page I of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS
External Reproduction and Deliveries: Cost plus 10%
Internal expenses: Cost
Mileage: IRS Rate
Travel: Cost
Page 1 of 1 Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
This is EXHIBIT E, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
RMA 51 "1
OWNER's Construction Contract Identification:
EFFECTIVE DATE OP TIME CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
OWNER
CONTRACTOR
Initial:
OWNER
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
famished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to die
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof:
By:
Title:
Dated:
Page 1 of 2 Pages
(Exhibit E — Notice of Acceptability of Work)
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ( "Notice ") on die front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice mid rely thereon agree:
t. Said Notice is given with the skill and care ordinarily used by members of the engineo ing profession practicing
under similar conditions nt the sauce time and in the some locality.
2. Said Notice reflects mid is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge. information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR's work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER
5. (Modified) Said Notice is not a guarantee or warranty, of CONTRACTOR's performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to famish and
perform the work thereunder in accordance with the Contract documents, unless ENGINEER knew or should
have known of such failure and failed to notify the Owner of such failure and take appropriate action so that the
same were corrected and brought into compliance with the Contract Documents.
Page 2 of 2 Pages
(Exhibit E — Notice of Acceptability of Work)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the terns of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and et7ect insurance against claims for injuries to or death of persons or damages to property which may arise
out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable.
The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish
separnie certificates and endorsements for each subcontractor. All coverage Car subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amount.%
required in this contract:
Commercial General Liability (CGL)
General Aggregate: $2,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Pei Occurrence: $1,000,000
a. Coverage shall be at least as broad as ISO CG 00 02 12 07
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $1,000,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $1,000,000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
c. Coverage will be in force for three (3) years after project is completed.
Page 1 of 2 Pages
(Exhibit G - Insurance)
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail, return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of B+ :VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & O can be on claims -made form.
d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general
liability and business automobile policies.
e. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates of
insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of
insurance coverage shall be provided to OWNER's representative prior to execution of this agreement.
f Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance coverage
shall be furnished to OWNER's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and part of
the Agreement between OWNER and ENGINEER for
Professional Services dated
Initial:
OWNER
ENGINEER
Indemnification
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER")
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF
EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR
DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY
OR FOR ANY BREACH OF CONTRACT TO THE EXTENT
ARISING OUT OF OR IN CONNECTION WITH AN ACT OF
NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
ENGINEER OR THE ENGINEER'S AGENT, ENGINEER UNDER
CONTRACT, OR ANOTHER ENTITY OVER WHICH THE
ENGINEER EXERCISES CONTROL (COLLECTIVELY
ENGINEER'S PARTIES). IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT
OWNER FROM THE CONSEQUENCES OF ENGINEER'S
PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE
NEGLIGENCE AS WELL AS THE ENGINEER'S PARTIES'
INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS
ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT
IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF
ANY PERSON OTHER THAN THE ENGINEER'S PARTIES. IN
THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE OWNER FROM WHICH THE
OWNER IS INDEMNIFIED, ENGINEER FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE
INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE
TERMINATION AND /OR EXPIRATION OF THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER
hereby expressly revokes any consent to litigation that it may have granted by the terms
of this Contract or any other contract or agreement, any charter, or applicable state law.
Nothing herein shall be construed so as to limit or waive OWNER'S sovereign
immunity. ENGINEER assumes full responsibility for its work performed hereunder
and hereby releases, relinquishes and discharges OWNER, its officers, agents, and
employees from all claims, demands, and causes of action of every kind and character
for any injury to or death of any person and/or any loss of or damage to any property
that is caused by or alleged to be caused by, arising out of, or in connection with
ENGINEER's work to be performed hereunder. This release shall apply with respect to
ENGINEER's work regardless of whether said claims, demands, and causes of action
are covered in whole or in part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and/or expiration of this Agreement.