Ordinance No. 12,880ORDINANCE NO. 12,880
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, APPROVING THE PROFESSIONAL SERVICE AGREEMENT
BETWEEN THE BAYTOWN AREA WATER AUTHORITY AND ALAN
PLUMMER ASSOCIATES, INC., FOR THE BAYTOWN AREA WATER
AUTHORITY WATER TREATMENT PLANT WATER SYSTEM
IMPROVEMENTS PROJECT IN THE AMOUNT OF EIGHTY THOUSAND
FIFTY -SIX AND NO /100 DOLLARS ($80,056.00); AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
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 approves the
Professional Service Agreement between the Baytown Area Water Authority and Alan Plummer
Associates, Inc., for the Baytown Area Water Authority Water Treatment Plant Water System
Improvements Project in the amount of EIGHTY THOUSAND FIFTY -SIX AND NO /100
DOLLARS ($80,056.00).
Section 2: This ordinance shall take effect immediately from and after its passage by
the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vo o� the City Council of the
City of Baytown this the 11 th day of June, 2015. ,n r]r /)
CHRIS PRESLEY, Mayor Pro Tern
ATTEST:
LETICIA BRYSCH, My Clerk
APPROVED AS TO FORM:
� z
NACIO RAMIREZ, SRLkity Attorney
R:`. Karen" Files tCity CouncillOrdinances\2A15Vune 11W pproveBAWAWTPWaterSystemlmprovementProject .doc
`` • •
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
See
THIS AGREEMENT effective as of the day of May,2015("Effective Date").
Between
Baytown Area Water Authority ("OWNER")
and
Alan Plummer Associates, Inc.("ENGINEER")
ENGINEER shall perform professional services necessary for the Baytown Area Water Authority Water Treatment
Plant("WTP") Water System Improvements Project, which improvements will enable OWNER to produce potable
water without the dependency of high service pump operation and will include,but not be limited to,the installation
of a new service water pump station fed from the pipe between the existing ground storage tanks and the high service
pump station and the installation of variable frequency drives to stabilize the pressure in the new service water
system(the"Project"). The Project will be located in the area between the storage tanks and the electrical building
with the pump controls installed in the building. ENGINEER shall give attention to the location of backflow
prevention to protect the administration building and other potable water demands within the WTP.
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 12
TABLE OF CONTENTS
Ear
e
ARTICLE I - 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 ENGI NEER ....................................................................................... ............................... 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
ARTICLE6 - GENERAL CONSIDERATIONS .................................................................................. ............................... 4
6.01 Standards of Performance .................................................................. ............................... ....
4
6.02 Authorized Project Representatives .................................................................... ............................... .........
5
6.03 Design without Installation phase Services ........... .................. ................................................................. ... ._.
5
6.04 Use of Documents ......... _..._ ........................... .............................. ...................... . ........ I ............ ........ .------ —.5
6.05 Insurance ........................... ............................... ..., ...... ..................,............ , ............................... _.......... .......
6
6.06 Termination ........................................................................................................................ ...............................
6
6.07 Controlling Law ............................ ................ .. -- ................... --- .............................................. ............... .....,
6
6.08 Successors. Assigns, and Beneficiaries . ..... ..... ................................................................. ...............................
6
6.09 Dispute Resolution ................................................................................... ...............................
6.10 Hazardous Environmental Condition ................................................................................. ...............................
6.11 Allocation of Risks ............................................................................................................. ...............................
7
6.12 Notices ................................................................................................................................ ...............................
7
6.13 Survival .............................................................................................................................. ...............................
7
6.14 Severability ......................................................................................................................... ...............................
7
6.15 Waiver ............................................................................................................................... ...............................
7
6.16 Headings .................................................................................................................,.......... ...............................
8
ARTICLE7 - DEFINITIONS ............................................................................................................... ............................... 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. ............................... 9
8.01 Exhibits Included ................................................................................................................ ............................... 9
8.02 Total Agreement .................................................................................................. ............................... _........... 10
Standard Form of Agreement
Between Owner and Engineer for Professional Ser%ices
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. 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 perform the
services required herein for the Project. 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 tern
"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 (lie time for perfonrtance
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 Seri-ices and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A.
Part 1, as set forth in Exhibit C.
B. For Additional Services OWNER shall pay
FNGINEER for Additional Services performed or furnished
under Exhibit A, Part 2. as set forth in Exhibit C.
C. (Modified) For Reimbursable Evpenscs. In
addition to payments provided 1'or in paragraphs 4.01.A and
4.01 B, 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 entail
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.
B. (Modified) Pattinent oflnvoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to [Hake
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and the
required backup documentation therefor, die amounts due
ENGINEER will accrue interest at the rate set firth in
Section 2251.025 of the Texas Government Code (or tine
maximum rate of interest permitted by law, if less) after the
30th dad ENGINEER may after giving seven days' WTnten
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts dire for
services, expenses, and other related charges. However. it is
expressly understood and agreed that ENGINEER %sill not
Standard Fonn of Agreement
Between Owner and Engineer for Professional Ser ices
Page 3 of 12
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and/or withheld in
accordance %vith paragraph 4.02 and that ENGINEER will not
suspend services under the agreement on account of a
disputed invoice or on accotutt of monies withheld. All
payments will be credited first to principal and then to interest
C. Dispu►ed 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. Pat7nents Upon Tern inatio►►.
1. In the event of any termination under section
6.06. ENGINEER %vill be entitled to invoice OWNER
and will be paid in accordance wide Exhibit C for all
services performed or famished and all Reimbursable
Expenses incurred through the etrective date of
termination: provided all instruments of scr►ice 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 Etrective 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.
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 furnished by others. or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER cannot
and does not guarantee that proposals, bids, or actual
Construction Cost mill 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 estnttator 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 corder 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 fir
discovering deficiencies therein. ENGINEER shall collect
such deficiencies without additional compensation except to
the extent such action is directly attributable to deficiencies in
OWNER - furnished information upon which ENGINEER is
authorized to rely as provided in Section 6.0 LE
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
nuty employ such ENGINEER's Consultants as ENGINEER
deems necessary to assist in the performance or furnishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER - mandated
standards. This Aareement 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 responsibilitie+ or to
Standard Form of Agreement
Bemcen Owner and Engineer for Professional Services
Page 4 of 12
ENGINEER's scope of services, times of performance, or
compensation.
E. (Nlodified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement. unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall snake 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 Installation phase,
OWNER shall notify ENGINEER of any variations from the
language indicated in Exhibit E, "Notice of Acceptability of
Work," or of any other notice or certification that ENGINEER
will be requested to provide to OWNER or third parties in
connection with the Project. OWNER and ENGINEER shall
reach agreement on the temps 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 %vltom requested, that would
result in ENGINEER's having to certify. guarantee or warrant
the existence of conditions whose existence ENGINEER
cannot ascertain; provided, that ENGINEER has exercised
due diligence and was not otherwise required to certify,
guarantee or wan-ant the existence of such conditions.
1. During the Installation phase, ENGINEER shall not
supervise, direct, or have control over Contractor's work, nor
shrill ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of
construction selected by Contractor, t'or safety precautions and
programs incident to the Contractor's work in progress, nor
for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work
J. (Modified) ENGINEER neither guarantees the
perfomnance 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 emTloyees or
any other persons (except ENGINEER's own employees and
its consultants for %vh ch it is legally liable) at the Site or
otherwise furnishing or performing any of the Contractor's
work, or for any decision Horde on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard 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
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive infomuition, and render
decisions relative to the Project on behalf of each respective
party.
6.03 Design .without Installation 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
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 Instninients of Sen ice
for any purposes which the OWNER sees tit. including. but
not liutited 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
mid 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 thine OWNER
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of die ENGINEER
its officers, and employees and sub - consultants. as well as
their successors and assigns
B. (Modified) Copies of OWNER - famished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otlienvise 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 tiles will be at the user's sole risk
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics. or of other
types that are furnished by ENGINEER to OWNER are only
for com enience 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 othermse without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, alter which the receiving parry
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic tiles will correct any errors
detected whim die 60-day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media fornnat 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 die use of software application packages. operating
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
R (Modified) Any use of the Documents on any
extension of die 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 hard 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, proNide 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 of 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 w711 be supplemented to incorporate these
requirements
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause.
a. (Modified) By either party upon 10 days'
written notice un tine event of failure by die 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 fitniish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding die foregoing. thus
Agreement will not tenninate 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
cared within such 30 day period, and if such party
has diligently attempted to cure the same and
thereafter continues diligently to cure die same then
the cure period provided for herein shall extend tip
to, but in no case more than 60 days after the date of
receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B Not used
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in w1iich the Project is located.
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 die
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
this Agreement without the Hritten consent of the other,
except to the extent that any assigniiient, subletting, or transfer
is mandated or restricted by law. Unless specifically stated to
the contrary in any written consent to an assignment, no
assigmnent 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.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
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
fiill compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGiNNLER is
performing professional services for ONVNER 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 Comprehensn e
Fnvironmental Response, Compensation, and Liability Act of
1990 (CERCLA), %vh ch are or may be encountered at or near
the Site in connection with ENGINEER's activities under this
Agreement.
F. if ENGINEER's set-vices under this Agreement
cannot be performed because of a Hazardous Emironmental
Condition, the existence of the condition shall justify
ENGINEER's tenninating this Agreement for cause on 30
days notice.
2. All dirties and responsibilities undertaken
pursuant to this Agreement will be for the sole and 6.11 Allocation of Risks
exclusive benefit of O NER and ENGINEER and not
for the benefit of any other party. The OWNER agrees A (Modified) Indemnification. See Exhibit K.
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
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
conunercial 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 Sunival
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
of this Agreement.
6.16 Headings
A. The headings used in thus 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 tens 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 Set-vices—The services to be performed
for or furnished to OWNER by ENGINEER in accordance
%vith 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 forni 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
into the air above current action levels established by the
I 1mted States Occupational Safety and Health Administration
6. Basic Sen-ices —The services to be performed for or
furnished to OWNER by ENGINEER in accordance with
Exhibit A, Part 1. of this Agreement
7. Bid- -The offer or proposal of the bidder submitted
on die 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 arty.
9. Change Ogler - -A document recommended by
ENGINEER. which is signed by Contractor and OWNER to
authorize an addition, deletion or revision to the Work. or an
adjustment in the Contract Price or the Contract Times, issued
on or after the Effective Date of the Constriction Agreement.
10. Constttiiction Agreement —The Written instrument
which is evidence of the agreement, contained in the Contract
Documents, between OWNER and Contractor covering the
Work
11. Constriction Contract —The entire and integrated
% ritten agreement between the OWNER and Contractor
concerning the Work.
12. Constriction Cost —The cost to OWNER of those
portions of the entire Project designed or specified bN
ENGINEER. Construction Cost does not include costs of
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
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 (lie cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement.
Construction Cost is one of (lie items comprising Total Project
Costs.
13. (Modified) Contract Docimients -- 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 Tinier- -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
reconmiendation of final payment.
16. Contractor - -Ain 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 MArNER.
any Defective Work, normally one year after die date of Final
Completion or such longer period of tine 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. Defectivc - -Aii 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. Doctinients —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 —Tliat part of the Contract Documents
prepared or approved by ENGINEER Much 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 Consiniction Agreement —The
date indicated in the Construction Agreement on which it
becomes effective, but if no such date is indicated, it means
the date on wiiich 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 Consuhants— Individuals or entities
having a contract with ENGINEER to furnish services with
respect to this Project as ENGINEER's independent
professional associates, consultants, subcontractors, or
vendors. The term ENGINEER includes ENGINEER's
Consultants.
24. Field Order - -A written order issued by ENGINEER
which directs minor changes in the Work but %vhich 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 ha%e
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. Genend Conditions -That part of the Contract
Documents which sets forth terms, conditions, and procedures
that govern the Work to be performed or furnished by
Contractor with respect to the Project
Standard Fonn of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
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. Hcca►doas Maste- -The tern[ Hazardous Waste shall
have the meaning provided ur 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. Pep•olemn -- Petroleum, including crude oil or any
fraction thereof Much 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 Aloterials -- Source, special nuclear, or
byproduct imerial as defined by the Atomic Energy Act of
1954 (42 USC Section 2011 et seq.) as amended from time to
tune
33. Record Drawings —The Drawings as issued for
construction on which the ENGINEER upon completion of
the Work, has shown changes due to Addenda or Change
Orders and other information which ENGINEER considers
significant based on record documents furnished by
Contractor to ENGINEER and which %were annotated by
Contractor to show changes made during construction.
34. Reimbursable Erpenses- -The expenses incurred
directly by ENGINEER in connection with the performing or
ffi nishmg 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 Installation phase. The
Resident Project Representative will be ENGINEER's agent
or employee and under ENGINEER's supervision. As used
herein, the tern Resident Project Representative includes any
assistants of Resident Project Representative agreed to by
O\'lN'ER. 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 OWWNER
«ltich are designated for use of Contractor.
39. Specifications--That part of the Contract Documents
consisting of ATinen technical descriptions of materials,
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 wvinere,
in the opinion of ENGINEER, the Work (or a specified par
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. Supplementarw Conditions —That pan of the Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) Total Project Costs —The sum of the
Construction Cost, allowances for contaugencies. 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 %vith the Project, and
the cost of other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement.
43 ifiork --The entire completed construction or the
various separately identifiable parts thereof required to be
provided under the Contract Documents with respect to this
Project Work includes and is the result of performing or
furnishing labor, services, and documentation necessary to
produce such construction and furnishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
Standard Form of Agreement
Between Owner and Engineer l'or Professional Services
Page 10 of 12
44. li'ork Change Directh a - -A wntten 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 docuinented by a Work Change Directive %All be
incorporated ui a subsequently issued Change Order following
negotiations by the parties as to its effect, if any, on the
Contract Price or Contract Times.
45. i1 "Huen .ftendrneni —A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
nor ialh 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 Serwces," consisting of
eight (8) 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 not
used.
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 Fxlubit 1, "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 some Agreement
Standard Forn of Agreement
Between Owner and Engineer for Professional Services
Page 1 l of 12
• •
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER:B OWN A HORITY ENGINEER: ALAN PLUMMER ASSOCIATES,
IN�C��
Signature: Signature: ,!%�� "�`
d,ZeC)
Printed Name: Ron Bottoms Printed Name: W.l j:A vl4. ( . Zek.kle-4-1
Title: Acting General Manager Title: 1''f:y►C;J1p,
Date Signed: Date Signed: dAti /91 oZ
tAYro `�
���
Address for giving notices: �c, �� Address for giving notices:
P.O.Box 424 * N I 3100 Wilcrest,Suite 270
i
Baytown,Texas 77522 �1 * Houston,TX 77042
•
4104.
Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A):
Name:Jose A.Pastrana,P.E. Name: John D'Antoni,P.E.
Title:Director of Engineering Title: Principal
Phone Number: (281)420-7154 Phone Number. (713) 464-2724
Facsimile Number: (281)420-6586 Facsimile Number: (713)464-2725
E-Mail Address: jose.pastrana@baytown.org E-Mail Address: jdantoni@apaienv.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
.. .
S •
This is EXHIBIT A, consisting of 8 pages, referred to in and
part of the Agreement between OWN Rand ENGINEER
for Professional Services dated (I i� (S.
Initial:
OWNER (1. 1-7
__ ll
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 1 -BASIC SERVICES(Modified)
A 1.01 Preliminary Design Phase
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER'S Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including, but
not limited to,mitigating measures identified in the environmental assessment(if any).
4. Identify and evaluate potential solutions available to OWNER; and,after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER'S professional judgment meet
OWNER's requirements for the Project.
5. (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 and fmalize design
criteria and acquire pertinent information regarding the Project.
6. (Modified)Perform or provide the following additional Preliminary Design Phase tasks or deliverables:
a. Gather information necessary for the Project.
b. Review existing geotechnical information.
7. (Modified) Prepare a preliminary design memorandum (the "Report") which will contain schematic
layouts, sketches, schedule of events, and conceptual design criteria with appropriate exhibits to
indicate the agreed-to requirements, considerations involved, system pressure and flow confirmation
pump station capacity determination,process and control descriptions and diagrams,a preliminary site
and yard piping plan, and those alternate solutions available to OWNER which ENGINEER
recommends. This Report will be accompanied by ENGINEER's opinion of Total Project Costs for
each solution which is so recommended for the Project with each component separately itemized,
including the following, which will be separately itemized: opinion of probable Construction Cost,
allowances for contingencies and for the estimated total costs of design, professional, and related
services provided by ENGINEER and, on the basis of information furnished by OWNER, allowances
for other items and services included within the definition of Total Project Costs.
Page 1 of 8 Pages
(Exhibit A--ENGINEER's Services)
8. Furnish three (3) review copies of the Report to OWNER within ninety (35) calendar days of
authorization to begin services and review it with OWNER.
9. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Repots to the OWNER within seven (7) calendar days after
completion of reviewing it %with OWNER.
Al .02 Design Phase
A. ENGINEER shall:
I. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings
indicating cite scope, extent, and character of the Work to be performed and furnished by Contractor.
Specifications will be prepared, where appropriate, in conformance with the 164vision format of the
Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER
2. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including, but not
limited to, the Texas Commission on Environmental Quality and Harris County Flood Control District
3. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
reconnniend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
4. (Modified) Artend meetings with, participate in conference calls with and prepare presentations for
OWNER and other applicable agencies, utility owners, pipelines, railroads, and other affected
stakeholders to review design details, to discuss and finalize design issues, and to coordinate the
Project.
5. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for
pennits from or approvals of govenumental authorities having jurisdiction to review or approve the final
design of the Project, assist OWNER in consultations with appropriate authorities, and obtain tike
necessary approvals for the Project.
6. Advise OWNER of the opinion of probable Construction Cost and Total Project Costs knoxhm to
ENGINEER.
7. Furnish twee (3) review copies and one electronic copy in a format approved by the OWNER of the 60%
submittal to OWNER within twenty -eight (28) calendar days of authorization to begin final design
services and review tie report with the OWNER. The 6000 submittal shall include the submittal of the
plait and profile sheets along with the quantity take offs and an opinion of probable construction cost
for the Project and any other information required in Section 1.02.A.5.
8. Revise die 60% submittal in response to O\kNER's and other parties' continents, as appropriate, and
incorporate such revisions in the 9011 o Bidding Documents
9. Furnish three (3) review copies and one electronic copy in a format approved by die OWNER of the 900o
submittal, including Bidding Documents, along %with a revised opinion of probable Construction Cost to
OWNER within seventy (70) calendar days of authorization to begin final design services and review it
with OWNER
10 Revise the 9000 submittal in response to OWNER's and ether parties' continents, as appropriate, and
incorporate such reN isions in the 10000 Bidding Documents
Page 2 of 8 Pages
(Exhibit A -- ENGINEER's Sera ices)
I I Furnish three (3) review copies and one electronic copy in a format approved by the OWNER of the 100° o
Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as
appropriate within eighty -four (84) calendar days of authorization to begin final design services and
review it with OWNER, review it with OWNER. and assist OWNER in the preparation of other related
documents
12. Revise the 100% Bidding Documents in response to OWNER's and other parties' continents, as
appropriate, and subunit 15 final sets of Bid Documents in pdf format on compact disks and an updated
opinion of probable Construction Cost to OWNER within ninety -one (91) calendar days after
authorization to proceed v6di this phase.
13. (Added) Prepare additional he 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 preparation of the final bid documents
B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more
than one prime contract, or if ENGINBER's services are to be separately sequenced %vith the work of one or
more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to
commencement of the Design Phase, develop a schedule for performance of ENGINEER's services during the
Design, Bidding or Negotiating, Construction, and Post - Installation phases in order to sequence and coordinate
properly such services as are applicable to the work under such separate prime contracts. This schedule is to be
prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts
is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by ENGINEER upon which die ENGINEER's
compensation has been established under this Agreement is one (1).
D. (Modified) ENGINEER's services under the Design Phase will be considered complete on the date when the
subrmttals required by paragraph A1.02.have been delivered to and accepted by OWNER.
A 1.03 Bidding or Negotiating Phase
A Upon viTitten authorization by OWNER to proceed for any bid documents contained in the preliminary design,
final design or installation phase of the Project. ENGINEER shall for that phase:
1 Assist ONVNER in advertising for and obtaining bids for the Work.
2 Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3 Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities, proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents
4 (Modified) Conduct the Mandatory Pre -Bid Conference and prepare summary of pre -bid meeting minute
for the project and distribute to all prospective bidders
5 Attend the Bid opening. prepare Bid tabulation sheets. assemble contract documents, assist OWNER in
both e%aluating Bids or proposals. recommend award to OWNER, as appropriate, and assist in awarding
contracts for the Work.
6 (Added) Assist in connection %with Bid protests, rebidding, or re- negotiating contracts for construction,
nmterials. equipment, or services.
Page 3 of 8 Pages
(Exhibit A -- ENGINEER's Sen ices)
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Installation phase.
A 1.04 Constniction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall:
General Administration of Construction Conlracl 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 otherwse agree in writing. All of OWNl:R's instructions to
Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER
in dealings %vith Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratort• Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01.0, if an}
3. Pre- Consowction Conference Prepare a Pre- Construction Conference agenda and conduct a Pre -
Construction Conference prior to commencement of Work at the Site. Prepare and provide a surrunary
of the Pre - Construction Conference minutes for the project and distribute it to all parties.
4. Baselines and Benchmarks. As appropriate, assist OWNER in establishing 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 Obsen -anon of Consn7icvion. In connection with observations of Contractor's work
in progress %vhile it is in progress:
a. (Modified) Make visits to the Site at nter%als appropriate to the various stages of constriction,
appropriate to verify Contractor's payment requests, 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 infonnation
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 cant' out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Installation 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 tint 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
Page 4 of 8 Pages
(Exhibit A -- ENGINEER's Services)
safety precautions and programs incident to Contractor's work, or for any failure ofContractor to
comply with Laws and Regulations applicable to Contractor's furnishing and performing the
Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor
assumes responsibility for any Contractor's failure to ftunish and perform its work in accordance
with the Contract Doctmments
G (Modified) Defective Mork. 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
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 ff'ork 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 Dratings and &nnples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data %vhich Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the design
concept of [lie completed Project as a functioning whole as indicated in the Contract Doctuments
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. FNGINEER
has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to
ENGINEER.
10. .Substiaaes and "or -egnaL ' 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.
I Lapections 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 Docmnents 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 (Modified) Disagreenrents benreen OIVNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to die acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. in rendering such decisions, ENGINEER slmll be fair and not show partiality
to OWNER or Contractor.
13. Applications fin Pa ' i7new. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation
Determine the :amounts that ENGINEER recommends Contractor be paid Stich
recommendations of payment will be in writing and will constitute EN61NEER's representation
Page 5 of 8 Pages
(Exhibit A -- ENGINEER's Services)
to ON'hNER, based on such observations and review, that, to the best of ENGINEER's
knowledge, information and belief, C'ontractor'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 prior to or upon Substantial Completion, to time
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in die 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 Contractor's work. In die 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.5.a are expressly subject to
die limitations set forth in paragraph A1.04.A.5.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 Contractor's work as it
is performed and furnished have been exhaustive, extended to every aspect of Contractor's work
in progress, or involved detailed inspections of the Work beyond tine responsibilities specifically
assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's
review of Contractor's %vork 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 Contractor's work in progress or for the means,
methods, techniques. sequences, or procedures of construction or safety precautions or programs
incident thereto, or Contractor's compliance with Laws and Regulations applicable to
Contractor's furnishing and performing die 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 OWNER 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
14. C onn-acra''s Completion Docwnenn.
a. (Modified) Recet%e and review maintenance and operating instructions, schedules. and guarantees as
prepared by die Contractor in accordance with die Contract Documents. Engineer will compile thi,.
information as provided by Contractor, and deliver three (3) copies of the same to OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and
required by the Contract 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 A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of document.s
from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved
by the OWNER and on mylar showing appropriate record information based on Project annotated
record documents received from Contractor.
15 Substannal Completion. Promptly after notice from Contractor that Contractor considers the entire Work
ready for its intended use. in company with O'%`NFR and Contractor, conduct an inspection to determine if
the 'A'ork is Substantially Complete. If after considering any objections of ONN NER. ENGINEER
Page 6 of R Pages
(Exhibit A -- ENGiNEER's Sen ices)
considers the Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial
Completion to OWNER and Contractor.
16. Additional Tasks. Perforni or provide the following additional Installation phase tasks or deliverables:
a. Review of schedules, submittals, test reports and submitted operation and maintenance manuals .
response to request for information
b. After substantial completion of the work, provide equipment check -out. system start -up assistance
and provide a substantial completion inspection.
c. After as -built construction documents are provided by the contractor, prepare and deliver to the
OWNER record documents, including a final design memorandum indicating any design changes
made during construction.
d. Provide project management including quality control and assurance throughout the Project,
including preparation of project schedules, opinion of probable construction costs, project
meetings and site visits.
17. (Modified) Fined Notice of Acceptahilin, of the Moy- . 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.
B. Donation of Installation phase. The Installation phase %till continence with the execution of the fir`t
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02 C
Installation phase services may be rendered at different times in respect to the separate contracts.
C. Limitation of Responsibilities ENGINEER shall not be responsible for the acts or omissions of am
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
fiumishung any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
famish the Work in accordance with the Contract Documents.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Semicas Requiring OHWER's Anthm-Lation in Advance
Not included
A2.02 Required Additional See- ices
Not Included
Page 7 of S Pages
(Exhibit A -- ENGINEER's yen ices)
• •
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWN_E and EN I EER
for Professional Services dated (p/dS s
Initial:
OWNER
ENGINEER
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability,and any budgetary limitations;and furnish copies of all design and construction standards which OWNER
will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms,
conditions,and related documents for ENGINEER to include in the Bidding Documents,when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in
which the existing data and documentation will be provided shall be at the sole discretion of the OWNER.
C. (Modified) Following ENGINEER's assessment of initially-available Project information and data and upon
ENGINEER's written request, 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).
6. (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 1 of 2 Pages
(Exhibit B—OWNER's Responsibilities)
14 (Deleted).
1. (Deleted).
J Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructability review.
J. Deleted
K. Deleted
L. Deleted
M. Deleted
N. OWNER will purchase server hardware and operating systems under separate procurement.
Nothing contained in this Exhibit or in (lie Agreement shall be construed to require the OWNER to provide an}
records or data 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
Page 2 oft Pages
(Exhibit B — OWNER's Responsibilities)
• •
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNE and NEER
for Professional Services dated
Initial:
OWNER
ENGINEER_Fled,
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and period, which shall be a calendar month.
supplemented to include the following agreement of Invoices shall be tendered no more often than
the parties: once a month for all of the services performed
during the applicable month.
ARTICLE 4--PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined C4.02 For Basic Services Having An Undetermined
Scope — Cost not to Exceed Method of Scope -- Direct Labor Costs Times a Factor
Payment Method of Payment
A. OWNER shall pay ENGINEER for Basic A. (Deleted).
Services set forth in Exhibit A as follows:
C4.03 For Additional Services
1. (Modified) A cost not to exceed
amount of $78.531.00. based upon the rate A. OWNER shall pay ENGINEER for
schedule, which is attached as Appendix 1 of Additional Services as follows:
Exhibit C and incorporated herein for all intents
and purposes. This amount includes those 1. General. For services of ENGINEER's
ENGINEER'S Consultant's charges if any. The employees engaged directly on the Project
cost not to exceed will be distributed at the pursuant to paragraph A2.01 or A2.02 of Exhibit
completion of each of the phases in an amount A of the Agreement, except for services as a
not exceeding the following for each task: consultant or witness under paragraph
A2.01.A.13, an amount based upon the actual
a. Preliminary Design Phase $20,999 hours worked and the rate schedule, which is
b. Final Design Phase $37,977 attached as Appendix 1 of Exhibit C and
c. Bidding or Negotiating Phase $ 5,088 incorporated herein for all intents and purposes
d. Construction Phase $14,467 plus Reimbursable Expenses. Additional
Services shall not be performed without the prior
2. Deleted. written consent of the OWNER. Additional
services which may be authorized in accordance
3. The cost not to exceed includes with this section shall not exceed$0.
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the 2. (Deleted).
exception of those outlined in paragraph C4.05),
if any. Appropriate amounts have been C4.04 For Reimbursable Expenses
incorporated in the cost not to exceed to account
for labor,overhead,and profit. A. (Modified) When not included in
compensation for Basic Services under paragraph
4. Deleted. C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
5. The portion of the amount billed for Appendix 2 of this Exhibit C. Before the OWNER
ENGINEER's services will be based upon total shall be liable for any reimbursable expenses, the
services actually completed during the billing ENGINEER must obtain prior written approval of the
Page 1 of 2 Pages
(Exhibit C-Basic Services With Determined Scope--Cost not to exceed Method)
OWNER of an), expense that exceeds $ 1,000 for
%hich the ENGINEER seeks reimbursement
Reimbursable Expenses shall not exceed the
following for the Project, whether incurred by the
ENGINEER or ENGINEER's consultant(s):
a. In -House Reproduction ......................... $125
b. Plan reproduct ion .............................. $1,150
c. Transportation/Mileage . _ ......_ ... $ 250
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking, tolls, long
distance, reproduction of Drawings. Specifications,
Bidding Docwnents. 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 based upon the rate schedule for
reimbursable expenses, plus all invoiced external
Reimbursable Expenses allocable to the Project. the
latter multiplied by a Factor of 1.1.
D. (Deleted)
E. (Added) The OWNER mist approve all
travel expenses in writing before the same are
incurred. If such approval is not obtained, the
OWNER shall not be liable for such travel expenses
C4.05 For ENGINFER 'v Consultant's Charges
(Deleted)
C4.06 Direct Labor Costs
A. (Deleted)
B (Deleted).
4.07 Factors
A. (Deleted).
B. ( Deleted).
C4.08 Other Provisions Concerning PgrMew
A. Progress Payments. The portion of the
amounts billed for services which are identified in
paragraphs 04.01, C4.03, and 04.05 will be based on
the rate schedule 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 or Pages
(Exhibit C - All Other Services Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C
RATESCHEDULE
Page 1 of l Pages
( Appendix 1 of Exhibit C — Hourly Rates)
Principal
$250.00
Senior Structural Engineer
$200.00
Structural Engineer
$140.00
Senior Electrical Engineer
$235.00
Electrical Engineer
$140.00
Senior Project Manager
$218.00
Project Manager
$170.00
Senior Project En ineerIScientist
$145.00
Project Engineer/Scientist
$130.00
Engiiieer-in-Training/Scientist-in-Training
$115.00
Senior Desi erlTechnician
$115.00
Designer 'Technician
$ 90.00
Senior Admin Staff
$102.00
Admin Staff
$ 72.00
Page 1 of l Pages
( Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C
REIMBURSEMENT OF COSTS
Reproduction and Deli%enes Cost plus 10 °o
Mileage- IRS Rate
Travel Cost
Page I of I Pages
(Appendix 2 of Exhibit C — Consultant's Hourly Rates)
• •
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between pWNE and ENGINEER
for Professional Services dated is
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the 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&Advertising Injury: $1,000,000
Per Occurrence: $500,000
a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy(BAP)
Combined Single Limits: $1,000,000
a. Coverage for"Any Auto."
Workers'Compensation Insurance
Statutory Limits
Employer's Liability$500,000
Waiver of Subrogation required
Errors&Omissions(E&O)
Limit: $1,000,000
a. For all engineers,and/or design companies.
b. Claims-made form is acceptable.
c. Coverage will be in force for three(3)years after project is completed.
Page 1 of 2 Pages
(Exhibit G-Insurance)
I tpon 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 tinder
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has
been gi%en 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 to State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & O can be on claims -made form
d The Baytown Area Water Authority, 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 the Baytown Area Water Authority, certified copies of all insurance policies
and/or certificates of insurance shall be furnished to the Baytown Area Water Authority's representative.
Certificates of insurance showing evidence of insurance coverage shall be provided to the Baytown Area Water
Authority's representative prior to execution of this agreement.
f. Upon request of and %Athout cost to the Baytown Area Water Authority, loss runs (claims listing) of any and/or
all insurance coverage shall be furnished to the Baytown Area Water Authority'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 OWNS and EN ER
for Professional Services dated to/i c /c
Initia:
OWNER
ENGINEER n
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, CONSULTANT
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
Page 1 of 2 Pages
(Exhibit K-Indemnification)
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE
INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE
TERMINATION AND /OR EXPIRATION OF THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have granted
by the terms of this Contract or any other contract or agreement, any charter, or
applicable state law. Nothing herein shall be construed so as to limit or waive
OWNER'S sovereign immunity. ENGINEER assumes full responsibility for its
work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and /or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with ENGINEER's work to be performed
hereunder. This release shall apply with respect to ENGINEER's work regardless
of whether said claims, demands, and causes of action are covered in whole or in
part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and/or expiration of this Agreement.
Page 2 of 2 Pages
(Exhibit K - Indemnification)