Ordinance No. 13,177ORDINANCE NO. 13,177
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 WEST OF GARTH ROAD PROJECT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED ONE HUNDRED NINE THOUSAND ONE HUNDRED FIFTY AND
NO/100 DOLLARS ($109,150.00); 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 West
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 NINE THOUSAND ONE HUNDRED FIFTY AND N01100 DOLLARS ($109,150.00) 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
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the
Baytown this the 26h day of April, 2016.
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APPROVED AS TO FORM:
e
NACIO RAMIREZ, SR., t Attorney
and after its passage by the
of the City Council of the City of
DONCARLOS, Mayor
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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 from the Academy Store to San Jacinto Boulevard (the "Project "). The Project involves
approximately 1250 linear feet of street work. 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 & gutters from the proposed San Jacinto Boulevard roundabout to the east
approximately 1250 feet to the existing Hunt Road pavement end near the rear of the Academy store. The
Pavement will include a raised 30 foot wide divided median with left turn lanes, median cuts and 5 foot
wide sidewalks along each side ofthe road.
Right- of -W av: The existing Hunt Road Right -of -Way is 60 feet wide and an additional 60 feet of Right -of-
Way is to be obtained for the project.
Drainage: Drainage for this project will be provided by a storm sewer system constructed with the roadway
improvements. The existing pipeline corridor will be the drainage divide between water that will go east and
west. The drainage on the east side of the pipelines is proposed to go to the existing outfall from the
Academy store detention pond. The drainage west of the pipeline will connect to the proposed San Jacinto
Boulevard storm sewer.
Utilities: 12" potable water and 10" sanitary sewer utilities will be designed to provide main service for
Hunt Road and will be extended west from the current location on Hunt Road behind the Academy store.
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
ARTICLE 1 - SERVICES OF ENGINEER ......................................................................................... ............................... 3
1.01 Scope .................................................................................................................................. ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES .................................................................................. ............................... 3
2.01 General ................................................................................................................................ ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ...................................................................... ...............................
3.01 General ............................................................................................................................... ...............................
3.02 Suspension ......................................................................................................................... ...............................
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
ARTICLE7 - DEFINITIONS .............................................................................................................. ...............................
7.01 Defined Terms .................................................................................................................. ...............................
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 furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. 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 famishing of the
services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER- mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other information 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 fiunish 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 finnishing 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
fiunished 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
partly.
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 fiunished 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 ftunish 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.B the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due) 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
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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) wan-ants 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 Readings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
1. Addenda - -Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
2. Additional Services —The services to be performed
for or furnished to OWNER by ENGINEER in accordance
with Exhibit A, Part 2 of this Agreement.
3. 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
furnished to OWNER by ENGINEER in accordance with
Exhibit A, Part 1, of this Agreement.
7. Bid —The offer or proposal of the bidder submitted
on the prescribed form setting forth the prices for 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 fmal payment as evidenced by ENGINEER's written
recommendation of fmal 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 9of12
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 fiunished 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
famishing 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 fiunished 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 furnishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44. Work Change Directive - -A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing or
unforeseen subsurface or physical conditions under which the
Work is to be performed or to emergencies. A Work Change
Directive will not change the Contract Price or the Contract
Times but is evidence that the parties expect that the change
directed or documented by a Work Change Directive will be
incorporated in a subsequently issued Change Order following
negotiations by the parties as to its effect, if any, on the
Contract Price or Contract Times.
45. Written Amendment - -A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - engineering or non - technical
rather than strictly construction- related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
seven (7) pages.
B. Exhibit B, "OWNER'S Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to ENGINEER for Services
and Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, "Notice of Acceptability of Work,"
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.
Exhibit I, "Allocation of Risks," is not used.
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., D/BIA 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: ierryna,bhainc.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 fiunished 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 & gutters from the proposed San Jacinto Boulevard
Page 1 of 7 Pages
(EXHIBIT A - Scope of Work)
roundabout to the east approximately 1250 feet to the existing Hunt Road pavement end near
the rear of the Academy store. The Pavement will include a raised 30 foot wide divided
median with left turn lanes, median cuts and 5 foot wide sidewalks along each side ofthe road.
b. Right -of -Way: The existing Hunt Road Right -of -Way is 60 feet wide and an additional 60 feet
of Right -of -Way is to be obtained for the project.
C. Drainage: Drainage for this project will be provided by a storm sewer system constructed
with the roadway improvements. The existing pipeline corridor will be the drainage divide
between water that will go east and west. The drainage on the east side of the pipelines is
proposed to go to the existing outfall from the Academy store detention pond. The drainage
west of the pipeline will connect to the proposed San Jacinto Boulevard storm sewer.
d. Utilities: 12" potable water and 10" sanitary sewer utilities will be designed to provide main
service for Hunt Road and will be extended west from the current location on Hunt Road
behind the Academy store.
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% 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%
60 calendar days
60%
81 calendar days
90%
95 calendar days
100%
102 calendar days
11. Prepare and famish 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.O1.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 detennine 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)
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 finmished 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 fiunishing 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 fiunishing 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
famish 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, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors
or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions
pertaining thereto.
Page 1 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
H. (Deleted).
I. (Deleted).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructability review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
Page 2 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and supplemented
to include the following agreement of the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope —Cost not to Exceed 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 $106.650.00 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 ......................$3,500
Topography Survey ............................ $4,500
Roadway, on -site drainage and utility
design drawings including
specifications and bid packages
for four -lane boulevard
section ........ ............................... $74,120
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
Pipeline coordination .......................... $2,000
b. Bid Phase ................... .........................$9,265
c. Construction Phase .... .........................$9,265
2. (Deleted).
Initial:
OWNER
ENGINEER
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. Deleted.
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period, which shall be a calendar month. Invoices
shall be tendered no more often than once a month
for all of the services performed during the
applicable month.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. (Not Used).
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 A2.0l.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.
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
C4.04 For Reimbursable Expenses
A. (Modified) When not included in compensation
for Basic Services under paragraph C4.01, OWNER
shall pay ENGINEER for Reimbursable Expenses as
the rate set forth in Appendix 2 of this Exhibit C.
Before the OWNER shall be liable for any
reimbursable expenses 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 110LIRLY 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 1I
$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
ADMINISTRATIVE
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:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
4 .AI
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.
M
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.