Ordinance No. 12,854ORDINANCE NO. 12,854
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE ACTING 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 CDBG NON -HOUSING CENTRAL DISTRICT WASTE
WATER TREATMENT PLANT - FLOOD IMPROVEMENTS PROJECT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED FOUR HUNDRED NINETY-FOUR THOUSAND SIXTY-EIGHT AND
10/100 DOLLARS ($494,068.10); 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 Acting 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 CDBG Non -
Housing Central District Waste Water Treatment Plant - Flood Improvements 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 FOUR HUNDRED NINETY-FOUR THOUSAND
SIXTY-EIGHT AND 10/100 DOLLARS ($494,068.10) 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 NO/ 100 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 imme/6�e
and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmatie 'ty Council of the City of
Baytown this the 14'h day of May, 2015.
A
BRYSCH,
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., Cityt rney
cobfs0l legal Karen Files City Council Ordinances\2015-May 14WuthorizcKITProfessionalServicesAgreemmt4CDDGNon-HousingCmtralDistrictWWTPFloodlmprovements"ect doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the _ day of May, 2015 ("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
related to the review and evaluation of design and bid documents, design reviews, bid phase services, and
construction phase services for the Central District Wastewater Treatment Plant (WWTP) Flood Improvements
Project (the "Work" or the "Project") for and on behalf of the OWNER. The Central District WWTP project final
design was completed in September 2014 and subsequently bid in February 2015 by another Consultant. The
received bids were higher than the OWNER's established construction budget. The OWNER provided written
notification to original engineer terminating such engineer's services contract and is in need of a third -party design
review to identify cost saving opportunities, design revisions for cost saving improvements, and bid and construction
phase services to complete the project. ENGINEER'S services herein shall include third -party engineering review,
design revisions, bid phase, construction phase, and survey services in support of the Project ("Project").
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
At
TABLE OF CONTENTS Page
ARTICLE 1 - SERVICES OF ENGINEER........................................................................................................................ 3
1.01 Scope................................................................................................................................................................. 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES................................................................................................................. 3
2.01 General............................................................................................................................................................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES...................................................................................................... 3
3.01 General............................................................................................................................................................... 3
3.02 Suspension......................................................................................................................................................... 3
ARTICLE 4 - PAYMENTS TO ENGINEER...................................................................................................................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............................................. 3
4.02 Other Provisions Concerning Payments............................................................................................................ 3
ARTICLE5 - OPINIONS OF COST................................................................................................................................... 4
5.01 Opinions of Probable Construction Cost.......................................................................................................... 4
5.02 Designing to Construction Cost Limit.............................................................................................................. 4
5.03 Opinions of Total Project Costs....................................................................................................................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS................................................................................................................. 4
6.01 Standards of Performance................................................................................................................................. 4
6.02 Authorized Project Representatives.................................................................................................................. 5
6.03 Design without Construction Phase Services.................................................................................................... 5
6.04 Use of Documents............................................................................................................................................. 5
6.05Insurance ............................................................................................................................................................ 6
6.06 Termination....................................................................................................................................................... 6
6.07 Controlling Law................................................................................................................................................. 7
6.08 Successors, Assigns, and Beneficiaries............................................................................................................. 7
6.09 Dispute Resolution............................................................................................................................................ 7
6.10 Hazardous Environmental Condition................................................................................................................ 7
6.11 Allocation of Risks............................................................................................................................................ 8
6.12 Notices............................................................................................................................................................... 8
6.13 Survival.............................................................................................................................................................. 8
6.14 Severability........................................................................................................................................................ 8
6.15 Waiver...............................................................................................................................................................8
6.16 Headings............................................................................................................................................................ 8
ARTICLE7- DEFINITIONS.............................................................................................................................................. 8
7.01 Defined Terms
........................................ 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS............................................................................................... 11
8.01 Exhibits Included............................................................................................................................................. 11
8.02 Total Agreement.............................................................................................................................................. l 1
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 RESPONSIBILITIES
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 famished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or famished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.0I.A and
4.01.13, 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 and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith, otherwise, the parties 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 Invoices. Invoices will be prepared
in accordance 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 fees 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 manner with this requirement
shall result in the ENGINEER'S invoice being denied
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER 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
maximum rate of interest permitted by law, if less) after the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
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 furnished and all Reimbursable
Expenses incurred through the efifective date of termination
provided all instruments of service have been tendered to the
OWNER..
2. (Deleted)
E. (Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of 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 of the Agreement by any level
of government that 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 shall 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 OWNER'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 of 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 famished 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
provided 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 famished 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
OWNER -famished information upon which ENGINEER is
authorized to rely as provided in Section 6.01.E.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
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 famishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
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 Effective 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, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other information famished 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 famishing services under this Agreement
F. OWNER shall make decisions and carry 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 cerdfication
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 terms 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.
H. (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 wan -ant
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 wan -ant the existence of such conditions.
1. 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 Contractors famishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any 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 responsible 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 furnishing or performing any of the Contractors
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 aro to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized 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
famished 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
ly
6.03 Design without Construction Phase Services
(Deleted)
6.04 Use of Documents
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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
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 fit, 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-fiunished 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 format 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 from 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 finished by ENGINEER to OWNER are 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
detected 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 -tern
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 reuse
of the Documents.
G. If there is a discrepancy between the electronic files
and the hand copies, the hard copies govern.
H. 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 those 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
1. 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 famish 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 same 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.
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 convenience by OWNER effective upon the of its knowledge a Hazardous Environmental Condition does
receipt of notice by ENGINEER. not exist.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located. Venue for all purposes
shall be in Harris County, Texas.
6.08 Successors, Assigns, and Beneficiaries
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 6.08.13 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) in
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
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) Indemnification. 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 Severability
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
ofthis 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 fiunished to OWNER by ENGINEER in accordance
with Exhibit A, Part 2 of this Agreement.
3. Agreement—This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8 hereof.
4. Application 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—The services to be performed for or
firrnished 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 the Work to
be performed.
8. Bidding Documents—The advertisement or invitation
to Bid, instructions to bidders, the Bid form and attachments,
the Bid bond, if any, the proposed Contract Documents, and
all Addenda, if any.
9. Change Order—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 Cost—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 the
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 Agreement. 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 Trraes—The numbers of days or the dates
stated in the Construction Agreement to: (i) achieve Final
Completion, and (ii) complete the Work so that it is ready for
final payment as evidenced by ENGINEER's written
recommendation of final payment.
16. Contractor -An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period—The time after 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 Laws or Regulations or by the terms 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 recommendation 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
performed 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
becomes effective, but if no such date is indicated, it means
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 famish 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 Order—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 subcontractors 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 Conditions -That part of the Contract
Documents which sets forth terms, conditions, and procedures
that govern the Work to be performed or fiumished by
Contractor with respect to the Project.
27. Hazardous Environmental 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. Hazardous Waste—The term 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 fiunished by
Contractor to ENGINEER and which were annotated by
Contractor to show changes made during construction.
34. Reimbursable Expenses—The 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—The 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 employee and under ENGINEER's supervision. As used
heroin, 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 examples of materials, equipment,
or workmanship that are representative of some portion of the
Work and which establish the standards by which such portion
of the Work will be judged.
37. Shop 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,
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
equipment, systems, standards, and workmanship as applied to
the Work and certain administrative details applicable thereto.
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 the purposes for which it is
intended. The terms "substantially complete' and
"substantially completed" as applied to all or part of the 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
pursuant to Exhibit B ofthis Agreement.
43. Work—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
finishing 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. Work 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 the 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
seven (7) 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 H, "Dispute Resolution," is not used.
I. Exhibit I, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used
K. (Added) Exhibit K, "Indemnification" 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 i l 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
Signature:
Printed Name: Ron Bottoms
Title: Acting City Manaeer
Date Signed:
Address for gi%ing notices:
P.O. Box 424
Baytown, Teras 77522
Designated Representative (paragraph 6.02.A):
Name: Jose A. Pastrana, P.E.
Title: Director of Engineering
Phone Number. (281) 420-7154
Facsimile Number: (281) 420-6586
E -Mail Address: 4oscmastranaLa.baytown.ore
ENGINEER: KIT PROFESSSIONA , INC..
Signature: 1
Printed Name: ��–.s -r– Vgt
Title: Se n o J V< <4 r '—
Date Signed: S -
Address for giving notices:
2000 W. Sam Houston Pkwy S., Suite 1400
Houston, Teras 77042
Designated Representative (paragraph 6.02.A):
pr
Name: 1 _e /I + /0 VOL 1C_
Title: c i� c. ire v -r�'�A �--
Phone Number. (713) 733-8700
Facsimile Number: (713) 783-8747
E -Mail Address: –SlvvU L. �itt� J S Gory`
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 7 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Sen ices dated
Initial.-
OWNER
nitial:OWNER
ENGINEER
ENGINEER's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART I -- BASIC SERVICES (Modified)
A1.01 Preiindnaiy Design Phase
(nor used)
A 1.03 Design Review Phase
A. Upon written authorization from OWNER, ENGINEER shall:
L Consult with OWNER to define and clarify OWNER's requirements for the Project and to gather
information from the existing facilities.
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.
3. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's 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 esaluation of potential solutions available to OWNER and to discuss design criteria and acquire
pertinent information regarding the Project.
5. Advise OWNER of the opinion of probable Construction Cost and Total Project Costs known to
ENGINEER.
G. Perform or provide the following additional final Design Phase tasks or deliverables:
a. Review information provided by the apparent low bidder relative to proposed cost savings and
attend meetings with same contractor to discuss third -party review items;
b. Evaluate the functional effects of the proposed changes and assess the value, cost, and feasibility
of the proposed cost saving items;
c. Obtain the services of electrical engineering and architectural sub consultants to support design
reviews, cost estimating, and recommendations;
d. Provide appropriate recommendations to OWNER to adjust the project size, and modify or
eliminate scope items that could significantly reduce estimated construction costs and achieve
OWNER's budget;
e. Develop Association for Advancement of Cost Engineering (AACE) Level 2 estimate for proposed
recommendations;
7. Submit a draft memorandum within thirty (30) days of the notice to proceed issued for this phase of the
Work that summarizes results of the engineering review and includes recommendations and estimated
costs. The memorandum will include summary forms for each proposed change that describes the
Page 1 of 7 Pages
(EXIIIBIT A - Scope of Work)
original concept, proposed change, discussion, and cost summary including the probable Construction
Cost and Total Project Costs.
8. Facilitate a review workshop with OWNER's stakeholders to review the draft memorandum and select
recommendations to reduce construction costs.
9. Within forty-five (45) days of the notice to proceed issued for this phase of the Work Prepare and
submit a final memorandum, sealed by a registered State of Texas Professional Engineer that
summarizes input from OWNER's stakeholders, results of the engineering review, and includes
recommendations and probable Construction Cost and Total Project Costs for each recommendation.
B. (Modified) ENGINEER's services under the Design Review Phase will be considered complete on the date
when the submittals required by paragraph A1.02.A have been delivered to and accepted by OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Design Revision Phase and upon written authorization by OWNER to proceed,
ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids for the Work.
2. Contact and inform appropriate local, state, and national contractors of Project. Answer questions and
issue Addenda as appropriate to clarify, connect, 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. Prepare bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating bids or
proposals and awarding contracts for the Work, and prepare a letter of recommendation for award.
6. (Modified) Attend the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist
OWNER in both evaluating Bids or proposals, and assist in awarding contracts for the Work.
7. Require Professional's electrical subconsultant to attend the Mandatory Pre -Bid Conference, prepare
Addenda as necessary, prepare responses to written questions, and provide support in reviewing bids
8. 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:
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
Page 2 of 7 Pages
(EXHIBIT A - Scope of Work)
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 the selection of an
independent testing laboratory to perform testing services, if any. ENGINEER shall provide two sets
of construction drawings and one copy of the specification book.
3. Pre -Construction Conference. Prepare a Pre -Construction Conference agenda and conduct a Pre -
Construction Conference prior to commencement of Work at the Site. Furnish three full-size set of
drawings labeled issued for construction at the Pre -Construction Conference. Prepare and provide a
summary 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 ojConstruction. In connection 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 the Contract Documents, but rather are to be limited to spot
checking, selective sampling, and similar methods of general observation of the Work based on
ENGINEER's exercise of professional judgment as assisted by the Resident Project
Representative, if any. Based 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 the 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 famishing and performing the
Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor
assumes responsibility for any Contractors 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 3 of 7 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 the
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. Shop Drawings 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 the 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 for 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 the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. Perform or provide the following additional Construction Phase tasks or deliverables:
a. Furnish 2 full size sets and 2 half size sets of drawings and technical specifications "Issued for
Construction" to the Contractor, the OWNER'S Project Manager, and the OWNER'S Inspector
b. Prepare progress meeting agendas and meeting minutes for progress meetings.
c. Retain the services of specific discipline engineers such as an Architect, Plumber, HVAC,
Electrical, and Instrumentation Consultant to attend the Pre -Construction Conference, if
requested by OWNER; to respond to all Requests for Information (RFIs), shop drawings and
submittal review related to these areas of work; to perform interim inspection(s) to observe as an
experienced and qualified professional the progress and quality of the Work; to provide a
detailed punch list of items in need of correction; and to conduct a final inspection to determine
compliance with the Construction Documents.
13. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractors work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractors work. In rendering such decisions, ENGINEER shall be fair and not show partiality
to OWNER or Contractor.
14. Applications for Payment. (Not used).
a. Determine the amounts that ENGINEER recommends Contractor be paid within five calendar
days of receiving a payment request. Such recommendations of payment will be in writing and
will constitute ENGINEER's representation to OWNER, based on such observations and
review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work
has progressed to the point indicated, the quality of such work is substantially in accordance
with the Contract Documents (subject to an evaluation of the Work as a functioning whole
Page 4 of 7 Pages
(EXHIBIT A - Scope of Work)
prior to or upon Substantial Completion, to the results of any subsequent tests called for in the
Contract Documents and to any other qualifications stated in the recommendation), and the
conditions precedent to Contractor's being entitled to such payment appear to have been
fulfilled in so far as it is ENGINEER's responsibility to observe Contractors work. In the case
of unit price work, ENGINEER's recommendations of payment will include final
determinations of quantities and classifications of Contractor's work (subject to any
subsequent adjustments allowed by the Contract Documents). The responsibilities of
ENGINEER contained in paragraph A1.04.A.14.a are expressly subject to the limitations set
forth in paragraph A1.04.A.14.b and other express or general limitations in this Agreement
and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractors work
as it is performed and furnished have been exhaustive, extended to every aspect of
Contractors work in progress, or involved detailed inspections of the Work beyond the
responsibilities specifically assigned to ENGINEER in this Agreement and the Contract
Documents. Neither ENGINEER's review of Contractors work for the purposes of
recommending payments nor ENGINEER's recommendation of any payment including final
payment will impose on ENGINEER responsibility to supervise, direct, or control Contractors
work in progress or for the means, methods, techniques, sequences, or procedures of
construction or safety precautions or programs incident thereto, or Contractors compliance
with Laws and Regulations applicable to Contractor's famishing and performing the Work. It
will also not impose responsibility on ENGINEER to make any examination to ascertain how
or for what purposes Contractor has used the moneys paid on account of the Contract Price, or
to determine that title to any portion of the work in progress, materials, or equipment has
passed to the City free and clear of any liens, claims, security interests, or encumbrances, or
that there may not be other matters at issue between OWNER and Contractor that might affect
the amount that should be paid.
15. Contractors Completion Documents.
a. Receive bonds, certificates, or other evidence of insurance not previously submitted City of
Baytown Central District WWTP and required by the Contact Documents, certificates of
inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided
under paragraph A1.04.A.9, and the annotated record documents which are to be assembled by
Contractor in accordance with the Contract Documents to obtain final payment. The extent of
such ENGINEER's review will be limited as provided in paragraph A1.04.A.9.
b. Transmit these documents to OWNER within 10 calendar days of receipt of documents from
Contractor.
c. Prepare and furnish to OWNER Record Drawings on reproducible mylar and in adobe .pdf
format showing appropriate record information based on Project annotated record documents
received from Contractor.
d. Upload Record Drawings to TGLO TRECS system upon project completion.
e. Ensure all Grant Required Documents are completed and uploaded to TGLO TRECS System,
and ensure contractor has completed all Grant Required paperwork for the Project.
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, the Work is acceptable and is in compliance with the Contract Documents.
Page 5 of 7 Pages
(EXHIBIT A - Scope of Work)
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the fust
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 Services Requiring OWNER's Authorization in Advance
A. Upon written advance authorization from OWNER, ENGINEER shall perform the following additional
services as requested:
1. Design Revision Phase.
After completion of the Design Review Phase, ENGINEER shall:
a. Consult with OWNER to define and clarify OWNER's requirements for the Project and to gather
information from the existing facilities.
b. 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 Hams County Flood Control District.
c. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
d. (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 any additional pertinent information regarding the Project.
e. (Modified) Prepare final drawings indicating the scope, extent, and character of the Work to be
performed and furnished by Contractor based upon the final memorandum and the option(s) chosen
by OWNER. Specifications will be prepared, where appropriate, in conformance with the 16 -
division, modified three-part format of the Construction Specifications Institute or other format agreed
to in writing by OWNER and ENGINEER.
f. 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 forty-five (45) calendar days of authorization to begin the design revision phase,
review it with OWNER, and assist OWNER in the preparation of other related documents.
g. 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 fifty-five (55) calendar days after
authorization to proceed with this phase.
h. Prepare additional line items in the Bid Tabulations, assuming the project documentation, including
plans and specifications, were originally prepared to reflect these items, as reasonably requested by
OWNER, so long as this/these request(s) is made prior to the submission of the final Bid Documents.
Page 6 of 7 Pages
(EXHIBIT A - Scope of Work)
ENGINEER's services under the Design revision Phase will be considered complete on the date when the
submittals required by paragraph A2.01.A.I have been delivered to and accepted by OWNER.
2. Other Services
ENGINEER shall:
Undertake design revisions before and during bid and construction phases in response to OWNER's
agreed upon cost saving recommendations and contractor questions.
b. Provide design revisions during construction phase services in response to unforeseen design issues
associated with errors or omissions in the original design Bid Documents, which could not have been
resolved in the previous design review, design revision, or bid phase services through the use of
reasonable diligent thought and attention by ENGINEER exercising the care and skill ordinarily used
by members of ENGINEER'S profession practicing under the same or similar circumstances.
A2.02 Required Additional Services
Not Included
Page 7 of 7 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
ENGINEE
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
82,01 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, furnish 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.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
G. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 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 I 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 famish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructability review.
IC. 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
ENGINE
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 TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope Cost not to Exceed A/ethod of Pqvntent
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
I. (Modified) A cost not to exceed
amount of $345,197.30, 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:
Design Review Phase ..................540.758.80
Bid Phase.......................................S9,892.10
Construction Phase ....................$294,546.40
2. Deleted.
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of E\GINEER'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 he 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 Lahor Costs Times a Factor
1fethod of Pa vment
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for Additional
Services as follows:
I. General. 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, 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. Additional Services plus reimbursable
expenses shall not exceed $100,000.00.
C4.04 For Reinibutsable 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 the following:
Design Review Phase .............................. $937.20
Bidding Phase ........................................... S50.00
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
Construction Phase ............................... $7,293.60
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
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 (1.101. 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.
C4.05 For ENGINEER's Consultant 's Charges
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
ENGINEER times a Factor of (LJ -Q). 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.
Design Review Phase
Electrical Services.........................$6,380.00
Architectural Services
...................$1,650.00
Bidding Phase
Electrical Services.........................$2,750.00
Architectural Services
...................$1,650.00
Construction Phase
Electrical Services.......................$23,210.00
Architectural Services
...................$4,950.00
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:
Page 1 of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
Principal/Technical Advisor
$263.50
Project Manager
$213.90
Design Manager
$179.80
Pm'ect Engineer 11
$170.50
Project Engineer I
$124.00
Graduate Engineer
$108.50
Senior CADD
$108.50
CADD
$93.00
Site Representative
$85.00
Admin. Assistant
$77.50
Page 1 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
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
OWNER
CONTRACTOR
Initial:
OWNER
The undersigned hereby give~ notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
By:
Title:
Dated:
Page I 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 the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and 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 famish 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 furnish 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 EXIIIBIT 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 /nsurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect 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
separate certificates and endorsements for each subcontractor. All coverage for 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 amounts required
in this contract:
Commercial General Liability (CGL)
General Aggregate: $2,000,000
Products & Completed Operations: $1,000,000
Personal R. Advertising Injury: 51,000.000
Per 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: S1,000,000
a. Coverage for "Any Auto,-
Workers'
uto.`
Workers' Compensation Insurance
Statutory Limits
Employer's Liability S 1.000,000
Waiver of Subrogation required
Errors S Omissions (ESO)
Limit: S2,000,000
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 nuns (claims listing) of any and/or all insurance coverage
shall be famished 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
ENGINEEfj,,�
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 1°K"
shall survive the termination and/or expiration of this Agreement.