The URL can be used to link to this page

Ordinance No. 13,176ORDINANCE NO. 13,176 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH BUSCH, HUTCHISON AND ASSOCIATES, INC., DB /A HUTCHISON & ASSOCIATES, FOR THE HUNT ROAD EXTENSION EAST OF GARTH ROAD PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED THIRTY -TWO THOUSAND ONE HUNDRED SEVENTY AND N01100 DOLLARS ($132,170.00); MAKING OTHER PROVISIONS RELATED THERETO; 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 authorizes and directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with Busch, Hutchison and Associates, Inc., d/b /a Hutchison & Associates, for the Hunt Road Extension East of Garth Road Project. A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Busch, Hutchison and Associates, Inc., d/b /a Hutchison & Associates, in an amount not to exceed ONE HUNDRED THIRTY -TWO THOUSAND ONE HUNDRED SEVENTY AND N01100 DOLLARS ($132,170.00) for professional 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 immediately frand after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative v� T e City Council of the City of Baytown this the 26'h day of April, 2016. / A .7 ''I APPROVED AS TO FORM: a4A— =_IO_R`A'eMIREZ, SR., C_ i 6 6 t H. DONCARLOS, Mayor &�F � ese ftd Ci lip t!� tii y �,9 F OF �� +P R:'Karer Tiles',City Council'0rdinances\2016\1pril 14\ KimleyHomAgreement4SanJacintoBlvdPhase2 .doc Exhibit "A" STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of the _ day of April, 2016 ( "Effective Date ") Between City of Baytown ( "OWNER") and Busch, Hutchison and Associates, Inc., d /b /a Hutchison & Associates ( "ENGINEER ") OWNER intends to contract to provide professional engineering design and consulting services related to the Hunt Road Improvements east of Garth Road from the existing boulevard end to the rear of the retail property site (the "Project'). The Project involves approximately 1100 linear feet of concrete paving with an asphalt transition to the existing pavement. ENGINEER shall perform services necessary to accomplish the following: Road and Detention Construction: Road construction which will provide an urban four -lane concrete pavement section with curbs and gutters from the existing end of concrete pavement to the east approximately 1100 feet to the rear of the commercial site. From there the pavement will have an asphalt transition back to the existing Hunt Road pavement. The concrete pavement will include a raised 30 -foot- wide divided median with left tum lanes, median cuts and 5 foot wide sidewalks along each side of the road. Right of Way: The existing Hunt Road Right of Way is 110 feet wide and with an additional 10 feet of utility easement on the Grube Tract. Drainage: Drainage for this Project will be provided by a storm sewer system constructed with the roadway improvements. The drainage is expected to be coordinated with the developer of the retail site. A box culvert is proposed to be pushed under the pipeline corridor on the Grube Tract to provide a gravity drain split for the detention pond. It is believed that this will allow enough detention excess volume to serve the roadway improvements. Utilities: Potable water and sanitary sewer utilities will be designed to provide main service for Hunt Road and will be extended east from the current location. 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 Page ARTICLE1 - 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 .............................................................................................................. ............................... 6 6.05 Insurance ............................................................................................................................. ............................... 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 ARTICLE 7 - DEFINITIONS ............................................................................................................... ............................... 8 7.01 Defined Terms ................................................................................................................... ............................... 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... 11 8.01 Exhibits Included .............................................................................................................. ............................... 11 8.02 Total Agreement ............................................................................................................... ............................... 11 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 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 suspended 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 such suspension and reactivation and the fact that the time for performance under this Agreement has been revised, unless such delay or suspension is caused in whole or in part by the ENGINEER, its officers, agents, or employees. If ENGINEER causes or contributes to the delay or suspension, ENGINEER shall have no right to seek additional compensation. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. (Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.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 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 calendar (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 calendar 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 calendar 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 by law, if less) after the 30'h calendar day. ENGINEER may after giving seven calendar 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 effective 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 furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by ENGINEER. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as 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 furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by persons performing the applicable disciplines, including, but not limited to, surveyors and professional engineers, practicing under similar circumstances at the same time and in the same locality. B. (Modified) All professionals performing services under this Agreement shall be responsible for the technical accuracy of their services, 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 attributable to deficiencies in OWNER - furnished information upon which ENGINEER is authorized to rely as provided in Section 6.01.E. C. ENGINEER shall perform or famish 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. Such professionals shall be appropriately licensed and/or registered to practice in the State of Texas. ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to 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 furnished by OWNER to ENGINEER pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. F. OWNER shall make decisions and 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 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 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 warrant the existence of conditions whose existence ENGINEER cannot ascertain; provided, that ENGINEER has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing 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 fiunishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard 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 information, and render decisions relative to the Project on behalf of each respective party- 6.03 Design without Construction Phase Services (Deleted) Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 12 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 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 appropriate professional. Files in electronic media format of text, data, graphics, or of other types that are furnished 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 calendar 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 calendar day acceptance period. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long -term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER's sole risk and OWNER hereby releases ENGINEER from any liability associated solely with the 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, 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 A. (Modified) The obligations hereunder may be terminated: 1. For cause, a. (Modified) By either party upon 30 calendar 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 calendar days written notice if ENGINEER is being requested by OWNER to furnish or perform services contrary to ENGINEER's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven calendar days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 calendar days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 calendar 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 calendar 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 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 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 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 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. 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 calendar 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 of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof: 1. Addenda -- Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services - -The services to be performed for or famished 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 12 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 United States Occupational Safety and Health Administration. 6. Basic Services- -The services to be performed for or fiunished 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 monies 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 Times - -The numbers of calendar 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 shows the scope, extent, and character of the Work to be standards, and orders of any and all governmental bodies, performed by Contractor. Shop Drawings are not Drawings as agencies, authorities, and courts having jurisdiction. so defined. 21. Effective Date of the Construction Agreement - -The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement - -The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. ENGINEER's Consultants -- Individuals or entities having a contract with ENGINEER to furnish services with respect to this Project as ENGINEER's independent professional associates, consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. 24. Field 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 furnished 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, 30. PCB's — Polychlorinated biphenyls. 31. Petroleum -- Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 32. Radioactive Materials -- Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings - -The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses —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 herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples — Physical 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications- -That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 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 of this 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 furnishing labor, services, and documentation necessary to produce such construction and famishing, 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," 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 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: CITY OF BAYTOWN Signature: Printed Name: Richard L. Davis Title: City Manager Date Signed: Address for giving notices: P.O. Box 424 Baytown, Texas 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: jose.pastrana @baytown.org ENGINEER: BUSCH, HUTCHISON AND ASSOCIATES, INC., DB,A HUTCHISON & ASSOCIATES Signature: Printed Name: Jerry I. Gainer, P.E. Title: President Date Signed: Address for giving notices: 1209 Decker Drive, Suite 100 Baytown, Texas 77520 Designated Representative (paragraph 6.02.A): Name: Jerry I. Gainer, P.E. Title: President Phone Number: (281) 422 -8213 Facsimile Number: (281) 420 -2717 E -Mail Address: ierryabhainc.com 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 Services dated Initial: 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 1 -- BASIC SERVICES (Modified) A1.01 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, analyze requirements of, and obtain the approval of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by ENGINEER. 4. 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. 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 finalize design criteria and acquire pertinent information regarding the Project. 6. (Modified) Prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be prepared, where appropriate, in conformance with the 16- division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER. 7. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities. 8. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER at 50 %, 90% and 100% design intervals. 9. Perform or provide all final Design Phase tasks or deliverables in order to have a complete design for the ultimate road construction, including the storm sewers, traffic signals, sanitary sewer, water main and detention ponds, and including, but not limited to, the following improvements to Hunt Road: a. Road and Detention Construction: Road construction which will provide an urban four -lane concrete pavement section with curbs and gutters from the existing end of concrete pavement Page 1 of 7 Pages (EXHIBIT A - Scope of Work) to the east approximately 1100 feet to the rear of the commercial site. From there the pavement will have an asphalt transition back to the existing Hunt Road pavement. The concrete pavement will include a raised 30- foot -wide divided median with left turn lanes, median cuts and 5 foot wide sidewalks along each side of the road. b. Right of Wav: The existing Hunt Road Right of Way is 110 feet wide and with an additional 10 feet of utility easement on the Grube Tract. c. Drainage: Drainage for this Project will be provided by a storm sewer system constructed with the roadway improvements. The drainage is expected to be coordinated with the developer of the retail site. A box culvert is proposed to be pushed under the pipeline corridor on the Grube Tract to provide a gravity drain split for the detention pond. It is believed that this will allow enough detention excess volume to serve the roadway improvements. d. Utilities: Potable water and sanitary sewer utilities will be designed to provide main service for Hunt Road and will be extended east from the current location. e. Survey. Right -of -way surveying along with a topography survey is included in this Project. f. Street Lighting Coordination/Design. Street lighting coordination/design with CenterPoint is included in this Project. g. Storm Water Pollution Prevention. Storm water pollution prevention plan for roadway design is included in this Project. 10. Provide Arch D (22" x 34 ") size progress plans, specifications and estimates at 30 %, 60 %, 90 9'o and 100% intervals in electronic PDF format. Submittal will consist of four hardcopy drawings (3 full -size and 1 half - size), bound hard copy of specifications, electronic files of drawings in AutoCAD and PDF formats, electronic files of technical specifications in pdf format. ENGINEER shall submit and plans, specifications and estimates as required herein in accordance with the following schedule: Submittal Due Date number of calendar days from Notice to Proceed 30% 45 calendar days 60% 66 calendar days 90% 80 calendar days 100% 94 calendar days 11. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 12. (Added) 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 preparation of the final bid documents. 13. Submit fifteen (15) final sets of Bid documents, including the approved plans and specifications in pdf format on compact disks and a revised opinion of probable Construction Cost to OWNER within one hundred twenty (126) calendar days after authorization to proceed with this phase. These final sets will be submitted on CD's in .pdf format. ENGINEER shall also provide one full size set (2204) and one half size set (11 x 17). B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to Page 2 of 7 Pages (EXHIBIT A - Scope of Work) 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. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph A1.0I.A.13 have been delivered to and accepted by OWNER. A1.02 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 Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids for the Work. 2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. 3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those portions of the Work as to which such acceptability is required by the Bidding Documents. 4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: a. Recommend award to the OWNER. b. Attend the Council meeting for award of the contract for the Project. 5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. 6. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction, materials, equipment, or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A1.03 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. (Modified) Construction and Materials Testing. Provide construction material testing, including concrete inspections, concrete test cylinders, reinforcing steel inspection and provide an engineering and report review as necessary for the Project. ENGINEER shall provide two sets of blue prints (civils and structurals) and one copy of the specification book to ENGINEER's construction and material testing subconsultant. Page 3 of 7 Pages (EXHIBIT A - Scope of Work) 3. Pre- Construction Conference. Participate in a Pre - Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. Visits to Site and Observation of Construction. In 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, 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 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 furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 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. Page 4 of 7 Pages (EXHIBIT A - Scope of Work) 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. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that ENGINEER recommends Contractor be paid. 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 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 Contractor's 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.5.a are expressly subject to the 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 fiunished have been exhaustive, extended to every aspect of Contractor's 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 Contractor's 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 Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs Page 5 of 7 Pages (EXHIBIT A - Scope of Work) incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing 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 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. Contractor's Completion Documents. a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. ENGINEER will compile this 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 A1.04.A.9. c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents 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. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER considers the Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial Completion to OWNER and Contractor. 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. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C, Construction 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 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 Not Included Page 6 of 7 Pages (EXHIBIT A - Scope of Work) 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 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, fiunish 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) H. (Deleted). I. (Deleted). I Advise ENGINEER of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructability review. K. Deleted L. Deleted M. Deleted N. Deleted Page 2 of 2 Pages (Exhibit B OWNER's Responsibilities) This is EXHIBIT C, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented exception of those outlined in paragraph C4.05), if to include the following agreement of the parties: any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, ARTICLE 4 -- PAYMENTS TO THE ENGINEER overhead, and profit. C4.01 For Basic Services Having A Determined 4. Deleted. Scope —Cost not to Exceed Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A as follows: 1. (Modified) A cost not to exceed amount of $129,670.00 based upon the rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated herein for all intents and purposes. This amount include those ENGINEER'S Consultant's charges and reimbursable expenses, and will be distributed at the completion of each of the phase in the following amount: a. Design Phase Right -of -way Surveying ...................... $1,500 Topography Survey ............................ $4,500 Roadway, on -site drainage and utility design drawings including specifications ........ and bid packages for four -lane boulevard section ...... $95,736 Street lighting coordination/design with CenterPoint ... ............................... $1,500 Storm Water Pollution Prevention Plan for Roadway Design ....................$1,500 Surveying — Control Points ................... $ 500 Surveying— Temporary Bench Marks. $ 500 b. Bid Phase ........... ............................... $11,967 c. Construction Phase ... ........................$11,967 2. (Deleted). 5. The portion of the amount billed for ENGINEER's services will be based upon total services actually completed during the billing period, which shall be a calendar month. Invoices shall be tendered no more often than once a month for all of the services performed during the applicable month. C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor Method of Payment A. (Not Used). C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. 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 under paragraph A2.01.A.13, an amount based upon the actual hours worked and the rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated herein for all intents and purposes plus Reimbursable Expenses. Additional Services shall not be performed without the prior written consent of the OWNER. C4.04 For Reimbursable Expenses 3. The cost not to exceed includes compensation for ENGINEER's services and A. (Modified) When not included in compensation services of ENGINEER's Consultants (with the for Basic Services under paragraph C4.01, OWNER Page 1 of 2 Pages (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method) 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 whether included in C4.01 or not, the ENGINEER must obtain prior written approval of the OWNER of any expense that exceeds $1,000 for which the ENGINEER seeks reimbursement. Reimbursable Expenses shall not exceed $2,500. 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 1.10. 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. (Deleted) 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 Consultant Staff: All services are to be billed on an hourly basis based on time and materials and based upon the following rates: POSITION I-10URLN" RATE ENGINEERING Drafter I $ 62.70 Drafter II $ 79.20 Drafter III $ 102.30 Designer I $ 79.20 Designer II $ 95.70 Designer III $118.80 Construction Manager $125.00 Engineer I $ 95.70 Engineer II $118.80 Engineer III $135.30 Engineer IV $151.80 Principal Engineer $192.50 SURVEY Crew Chief $ 75.90 Instrument Man $ 62.70 Rodman - Chainman $ 40.70 Drafter II $ 75.90 Project Surveyor Supervisor/CAD $ 79.20 Registered Surveyor, Senior $112.20 Registered Surveyor, Junior $ 92.40 1 Man with GPS $ 71.50 2 Man P $121.50 3 Man P $154.00 4 Man P $181.50 5 Man P $225.50 ADDIINISTRATIVE Typist/File Clerk $38.50 Secretary/Billing Secretary/Billing Clerk $55.00 Office Manager $88.00 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) 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: ,6 .id OWNER's Construction Contract Identification: EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT: CONSTRUCTION CONTRACT DATE: ENGINEER: To: And To: OWNER CONTRACTOR Initial: OWNER ENGINEER The undersigned hereby gives 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 1 of 2 Pages (Exhibit E - Notice of Acceptability of Work) (Reverse side of Notice) CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK The Notice of Acceptability of Work ( "Notice ") on 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 furnish during construction of the Project (including observation of the CONTRACTOR's work) under ENGINEER's Agreement with OWNER and applies to facts that are within ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER. 5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S performance under the Construction Contract nor an assumption of responsibility for any failure of the Contractor to 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 EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance Throughout the 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: $1,000,000 a. Coverage shall be broad form CGL b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. c. Waiver of Subrogation required Business Automobile Policy (BAP) Combined Single Limits: $1,000,000 a. Coverage for "Any Auto." b. Waiver of Subrogation required Workers' Compensation Insurance Statutory Limits Employer's Liability $500,000 Waiver of Subrogation required Errors & Omissions (E &O) Limit: $1,000,000 Page 1 of 2 Pages (Exhibit G - Insurance) 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. 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 A -:VII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. c. Liability policies will be on occurrence form. E & O can be on claims -made form. d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. e. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates of insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to OWNER'S representative prior to execution of this agreement. f. Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to OWNER's representative. Page 2 of 2 Pages (Exhibit G - Insurance) This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Indemnification ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY HIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR DAMAGES TO ANY PERSON(S) OR PROPERTY 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 ENGINEER OR ENGINEER'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH ENGINEER EXERCISES CONTROL (COLLECTIVELY ENGINEER'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ENGINEER AND CITY, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT CITY FROM THE CONSEQUENCES OF ENGINEER'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS 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 ENGINEER'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY FROM WHICH THE CITY IS INDEMNIFIED, ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY. 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.