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Ordinance No. 13,469ORDINANCE NO. 13,469 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH BURDITT CONSULTANTS, LLC., FOR THE GENE AND LORETTA RUSSELL PARK MASTER PLAN PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED EIGHTY-EIGHT THOUSAND AND N0/100 DOLLARS ($88,000.00); 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 Burditt Consultants, LLC., for the Gene and Loretta Russell Park Master Plan Project. A copy of the agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Burditt Consultants, LLC., in an amount not to exceed EIGHTY-EIGHT THOUSAND AND NO/100 DOLLARS ($88,000.00) 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 N0/100 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 immediatZfe after its passage by the City Council of the City of Baytown. INTRODUCED, READ, and PASSED by the affirmative vCouncil of the City of Baytown, this the 25`x' day of May, 2017. on , Mayor /WF valr1iffl.— _.' FA 1 APPROVED AS TO FORM: PACIO RAMIREZ, SR., C' y ttorney YTO .0800 G J N N�%�F"*so I OF 1\cobfs0111egalMaren\FileslCity Councif'Ordinances\2017Way 25\BurdittConsultantsPSA4RussellParkMasterPlan.doc Exhibit "A" STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR PROFESSIONAL SERVICES BETWEEN CITY OF BAYTOWN ("OWNER") AND BURDITT CONSULTANTS, LLC ("CONSULTANT") THIS AGREEMENT effective as of the _ day of May, 2017 ("Effective Date"). OWNER intends to engage CONSULTANT to provide professional services for the Gene and Loretta Russell Park Master Plan Project (the "Project"). Such project will entail obtaining information from City Staff as well as Gene and Loretta Russell regarding the goals and objectives for the Project and creating a master plan that will be designed to provide OWNER with a planning tool needed to forecast future development and budgets, which may include, but not be limited to, considerations for the following elements: 1. Sports fields; 2. Adequate parking provided for 5 fields with consideration given for overflow parking; 3. Concession building with an umpire's room, and moderate storage space; 4. Associated dugouts, batting cages, and warm-up spaces; 5. Restrooms for the sports fields and other facilities to serve other vicinities of Russell Park, and at the parking lot and walking/equestrian trailheads of the Chevron site serving riders, walkers, and nature explorers (to be determined based upon Chevron discussions); 6. Play structures within reasonable walking and viewshed distance from ball fields to allow for parents to view ballgames and also see younger aged children playing at playgrounds; 7. Other amenities such as basketball, volleyball, horseshoe pits, splashpad, walking trails, covered picnic tables, disc golf routing, and smaller outdoor pavilion for birthday parties or family reunions, etc.; 8. Site drainage and sheet flow addressed by a detention devices) that serves as an amenity for park users, as potential education on ecosystem services, and collection of storm water. Aeration should be provided at appropriate locations for adequate circulation of the pond facilities; 9. Fishing and safe water access for the public through boardwalks, dock(s) and low water areas or crossings; 10. Narrowed areas that allow for pedestrian and service vehicle (gator type) to cross; 11. Community Center to serve as meeting space, community gathering, party and small event rental, etc., to include warming room style kitchen (no commercial cooking). Additional uses pending programming sessions; 12. An open field play area that is also suitable for a unofficial youth football, lacrosse, or soccer game; 13. Opportunities for safe access by the 911 Center employees, Youth Fair, and neighborhood use; 14. Tree and landscape materials that are zone appropriate and suitable to soil conditions of the site; and 15. Infrastructure and facilities of the type and quality as to reflect intentions of OWNER to construct and operate a very high quality park. OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Consultant for Professional Services Page 1 of 12 TABLE OF CONTENTS Page ARTICLE 1 - SERVICES OF CONSULTANT................................................................................................................. 3 1.01 Scope................................................................................................................................................................. 3 ARTICLE 2 - OWNER'S RESPONSIBILITIES................................................................................................................. 3 2.01 General............................................................................................................................................................... 3 ARTICLE 3 - TIMES FOR RENDERING SERVICES...................................................................................................... 3 3.01 General............................................................................................................................................................... 3 3.02 Suspension......................................................................................................................................................... 3 ARTICLE 4 - PAYMENTS TO CONSULTANT............................................................................................................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ................................................ 3 4.02 Other Provisions Concerning Payments............................................................................................................ 3 ARTICLE 5 - 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 ................................... 6.03 Design without Construction Phase Services.................................................................................................... 5 6.04 Use of Documents............................................................................................................................................. 5 6.05Insurance............................................................................................................................................................ 6 6.06 Termination....................................................................................................................................................... 6 6.07 Controlling Law................................................................................................................................................. 7 6.08 Successors, Assigns, and Beneficiaries............................................................................................................. 7 6.09 Dispute Resolution............................................................................................................................................ 7 6.10 Hazardous Environmental Condition................................................................................................................ 7 6.11 Allocation of Risks............................................................................................................................................ 8 6.12 Notices............................................................................................................................................................... 8 6.13 Survival.............................................................................................................................................................. 8 6.14 Severability ........................................................................................................................................................ 8 6.15 Waiver............................................................................................................................................................... 8 6.16 Headings............................................................................................................................................................ 8 ARTICLE7 - DEFINITIONS.............................................................................................................................................. 8 7.01 Defined Terms.................................................................................................................................................. 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS............................................................................................... 11 8.01 Exhibits Included............................................................................................................................................. 11 8.02 Total Agreement.............................................................................................................................................. 11 Standard Form of Agreement Between Owner and Consultant for Professional Services Page 2 of 12 ARTICLE 1- SERVICES OF CONSULTANT ARTICLE 4 - PAYMENTS TO CONSULTANT 1.01 Scope A. CONSULTANT shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon issuance of a notice to proceed by the OWNER, CONSULTANT 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) CONSULTANT's services and compensation under this Agreement have been agreed to for the services specified in Exhibit A. CONSULTANT'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 CONSULTANT's services are delayed or suspended in whole or in part by OWNER, CONSULTANT may be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by CONSULTANT in connection with such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised, unless such delay or suspension is caused in whole or in part by the CONSULTANT, its officers, agents, or employees. If CONSULTANT causes or contributes to the delay or suspension, CONSULTANT shall have no right to seek additional compensation. 4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT A. For Basic Services. OWNER shall pay CONSULTANT for Basic Services performed or fumished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay CONSULTANT 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 4.0I.A and 4.01.13, OWNER shall pay CONSULTANT for Reimbursable Expenses incurred by CONSULTANT and its Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to CONSULTANT incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and CONSULTANT shall not make a claim against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with OWNER's standard processing practices and will be submitted to OWNER monthly via mail or email by CONSULTANT, unless otherwise agreed. CONSULTANT shall supply detailed back-up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. Invoices shall be received by the OWNER not later than sixty (60) days from the date the CONSULTANT and/or its subconsultants perform the services or incur the expense. Failure by CONCULTANT to comply with the requirements herein in a timely manner with this requirement shall result in the CONSULTANT's invoice being denied. B. (Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to make any payment due CONSULTANT for services and expenses within 30 days after receipt of CONSULTANT's invoice and the required backup documentation therefor, the amounts due CONSULTANT will accrue interest at the rate set forth in Section 2251.025 of the Texas Government Code after the 30th day. CONSULTANT may after giving seven days' written notice to OWNER suspend services under this Agreement until CONSULTANT has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that Standard Form of Agreement Between Owner and Consultant for Professional Services Page 3 of 12 CONSULTANT 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 CONSULTANT 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, CONSULTANT 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 CONSULTANT's Costs. Records of CONSULTANT's costs pertinent to CONSULTANT'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 CONSULTANT'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 CONSULTANT's estimated total compensation. G. (Added) Indebtedness. If CONSULTANT, 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 CONSULTANT has incurred a debt, the OWNER's Director of Finance shall immediately notify the CONSULTANT in writing. If the CONSULTANT 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 CONSULTANT under this Agreement, and the CONSULTANT waives any recourse therefor. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. CONSULTANT's opinions of probable Construction Cost provided for herein are to be made on the basis of CONSULTANT's experience and qualifications and represent CONSULTANT's best judgment as an experienced and qualified professional generally familiar with the industry. However, since CONSULTANT has no control over the cost of labor, materials, equipment, or services famished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, CONSULTANT cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by CONSULTANT. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 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 services to be performed or furnished under this Agreement will be the care and skill ordinarily used by members of the applicable disciplines, including, but not limited to, architects 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 documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. CONSULTANT shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER -furnished information upon which CONSULTANT is authorized to rely as provided in Section 6.01.E. C. CONSULTANT shall perform or furnish professional architectural, engineering and related services in Standard Form of Agreement Between Owner and Consultant for Professional Services Page 4 of 12 all phases of the Project to which this Agreement applies. Such professionals shall be appropriately licensed and/or registered to practice in the State of Texas. CONSULTANT shall serve as OWNER's prime professional for the Project. CONSULTANT shall employ such professionals as CONSULTANT deems necessary to assist in the performance or furnishing of the services. CONSULTANT shall not be required to employ any professional unacceptable to CONSULTANT. D. CONSULTANT 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 CONSULTANT's scope of services, times of performance, or compensation. E. (Modified) OWNER shall be responsible for, and CONSULTANT may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to CONSULTANT pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. CONSULTANT 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 CONSULTANT. G. Prior to the commencement of the Construction Phase, OWNER shall notify CONSULTANT of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that CONSULTANT will be requested to provide to OWNER or third parties in connection with the Project. OWNER and CONSULTANT 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 CONSULTANT to provide the notices or certifications requested. H. (Modified) CONSULTANT shall not be required to sign any documents, no matter by whom requested, that would result in CONSULTANT's having to certify, guarantee or warrant the existence of conditions whose existence CONSULTANT cannot ascertain; provided, that CONSULTANT has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. 1. During the Construction Phase, CONSULTANT shall not supervise, direct, or have control over Contractor's work, nor shall CONSULTANT 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) CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve CONSULTANT from liability for any such failure about which CONSULTANT knew or should have known existed in the exercise of CONSULTANT's services under this Agreement. K. (Modified) CONSULTANT 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 CONSULTANT's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing 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 CONSULTANT. 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, CONSULTANT and OWNER shall designate specific individuals to act as CONSULTANT's and OWNER's representatives with respect to the services to be performed or furnished by CONSULTANT and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services (Deleted). 6.04 Use of Documents A. (Modified) Upon execution of this Agreement, the CONSULTANT grants to the OWNER an ownership interest Standard Form of Agreement Between Owner and Consultant for Professional Services Page 5 of 12 in the Instruments of Service. The CONSULTANT shall obtain similar interests from its consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the CONSULTANT 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 CONSULTANT 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 CONSULTANT's name and all references to the CONSULTANT, 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 CONSULTANT, its officers, and employees and sub - consultants, as well as their successors and assigns. B. (Modified) Copies of OWNER -furnished data that may be relied upon by CONSULTANT are limited to the printed copies that are delivered to CONSULTANT pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to CONSULTANT are only for convenience of CONSULTANT. 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 CONSULTANT to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60 -day acceptance period. CONSULTANT shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, CONSULTANT 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 CONSULTANT 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 CONSULTANT from any liability associated solely with die 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 CONSULTANT to further compensation at rates to be agreed upon by OWNER and CONSULTANT. 6.05 Insurance A. CONSULTANT shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. (Deleted). C. (Deleted). D. (Deleted). E. (Deleted). F. At any time, OWNER may request that CONSULTANT, 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 CONSULTANT, and if commercially available, CONSULTANT shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: 1. For cause, Standard Form of Agreement Between Owner and Consultant for Professional Services Page 6 of 12 a. (Modified) By either party upon 30 days' written notice in the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party; or b. By CONSULTANT upon seven days' written notice if CONSULTANT is being requested by OWNER to furnish or perform services contrary to CONSULTANT's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by CONSULTANT. B. (Deleted). 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. 6.09 Successors, Assigns, and Beneficiaries A. OWNER and CONSULTANT each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and CONSULTANT (and to the extent permitted by paragraph 6.08.13 the assigns of OWNER and CONSULTANT) 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 CONSULTANT 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 CONSULTANT 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 CONSULTANT 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 (Deleted). 6.10 Hazardous Environmental Condition A. OWNER represents to CONSULTANT 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 CONSULTANT 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, CONSULTANT 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 CONSULTANT's scope of services does not include any services related to a Hazardous Environmental Condition. In the event CONSULTANT or any other party encounters a Hazardous Environmental Condition, CONSULTANT may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that CONSULTANT is performing professional services for OWNER and that Standard Form of Agreement Between Owner and Consultant for Professional Services Page 7 of 12 CONSULTANT 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 CONSULTANT's activities under this Agreement. F. if CONSULTANT's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify CONSULTANT's terminating this Agreement for cause on 30 days' notice. 6.11 Allocation of Risks 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 CONSULTANT, 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. A. (Modified) Indemnification. See Exhibit K. 6.16 Headings B. (Added) Notwithstanding anything to the contrary contained in this Agreement, the OWNER and CONSULTANT hereby agree that no claim or dispute between the OWNER and CONSULTANT 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, CONSULTANT consents to be joined in the arbitration proceeding if CONSULTANT'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. 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 CONSULTANT in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement—This "Standard Form of Agreement between OWNER and CONSULTANT for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment --The form acceptable to CONSULTANT which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos—Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established Standard Form of Agreement Between Owner and Consultant for Professional Services Page 8 of 12 by the United States Occupational Safety and Health Administration. 6. Basic Services --The services to be performed for or furnished to OWNER by CONSULTANT 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 CONSULTANT, 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 CONSULTANT. Construction Cost does not include costs of services of CONSULTANT 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 professional's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price --The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times --The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Final Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by CONSULTANT's written recommendation of final payment. 16. Contractor= -An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period -The time after Final Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Final Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective—An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to CONSULTANT'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 fumished in appropriate phases by CONSULTANT to OWNER pursuant to this Agreement. 20. Drawings—That part of the Contract Documents prepared or approved by CONSULTANT which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 9 of 12 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. Consultants—Individuals or entities having a contract with CONSULTANT to furnish services with respect to this Project as CONSULTANT's independent professional associates, consultants, subcontractors, or vendors. The term CONSULTANT includes its Consultants. 24. Field Order—A written order issued by CONSULTANT 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 terns, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 27. Hazardous Environmental Condition—The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste—The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Laws and Regulations; Laws or Regulations— Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's --Polychlorinated biphenyls. 31. Petroleum—Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Radioactive Materials --Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings --The Drawings as issued for construction on which the CONSULTANT, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which CONSULTANT considers significant based on record documents furnished by Contractor to CONSULTANT and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses—The expenses incurred directly by CONSULTANT in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay CONSULTANT as indicated in Exhibit C. 35. Resident Project Representative—The authorized representative of CONSULTANT, if any, assigned to assist CONSULTANT at the Site during the Construction Phase. The Resident Project Representative will be CONSULTANT's agent or employee and under CONSULTANT'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 CONSULTANT to illustrate some portion of the Work. 38. Site—Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which Standard Form of Agreement Between Owner and Consultant for Professional Services Page 10 of 12 the Work is to be performed, rights-of-way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications—That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion --The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of CONSULTANT, 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 CONSULTANT 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 CONSULTANT, 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 -architectural 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, "CONSULTANT's Services," consisting of two (2) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to CONSULTANT for Services and Reimbursable Expenses," consisting of two (2) pages. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative," is not used. E. Exhibit E, "Notice of Acceptability of Work," is not used. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. 1. Exhibit I, "Allocation of Risks," is not used. J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and CONSULTANT 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 Consultant 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 CONSULTANT: BURDITT CONSULTANTS, INC. Signature: Signature: Printed Name: Richard L. Davis Printed Name: &W,0117_ Title: City Manager Title: XA&4 g6ffR %>>P%ALZPAL ZE901X % Date Signed: Date Signed: Y-17-17 Address for giving notices: P.O. Box 424 Baytown, Texas 77522 Designated Representative (paragraph 6.02.A): Name: Scott Johnson Title: Director of Parks and Recreation Phone Number. (281) 420-6533 Facsimile Number: (281) 420-6586 E -Mail Address: scou.iohnson0bavtown.ore Address for giving notices: 310 Longmire Conroe, Texas 77304 Designated Representative (paragraph 6.02.A): Name: Charles Burdilt Title: ManagingPrhminal/tq-e'4t/'4 Phone Number. (936) 756-6041 Facsimile Number: (936) 539-3240 E -Mail Address: cburditt(4burditt.com Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 This is EXHIBIT A, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT CONSULTANT's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. CONSULTANT shall provide Basic and Additional Services as set forth below. PART 1 -- BASIC SERVICES (Modified) A1.005 Master Plan Phase. A. CONSULTANT shall: 1. Consult with OWNER to define and clarify OWNER's requirements for the Project. 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 CONSULTANT's Basic Services, and assist OWNER in obtaining such data and services. 3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by CONSULTANT. 4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's requirements for the Project. 5. (Modified) Attend meetings with OWNER and OWNER's consultants, designated boards, commissions and/or City Council to receive input into OWNER'S requirements for the Project and evaluate potential solutions available to OWNER. 6. (Modified) Perform or provide the following additional Master Plan Phase tasks or deliverables: a. Conduct initial Project Kickoff Meeting with OWNER. (1) During this meeting, a recommended project schedule will be presented covering an approximate planning and design period of 10 weeks. (2) Tasks will be addressed and goals and objectives reaffirmed. (3) A recommended schedule for internal engagement of Staff, Elected Officials, and City identified users will be developed between all team members. (4) Coordination concerning design intentions and preliminary program needs, improvements and limits of work, and team member roles will be addressed. b. Receive and review Geotechnical Study/Report as available for future site structures, parking, etc., and available survey information such as topography, boundary, easements, and utilities. c. Review applicable documents as supplied by OWNER as to relevant regulatory and current code requirements. d. Research preliminary site issues and field inspection regarding general topography, accessibility, drainage, and suitability for intended uses; however, USACE permitting or wetland and Endangered Species Mitigation is excluded from this Master Plan Phase. e. Develop initial summary from Staff meetings and site visits detailing the facts, goals, concepts, needs with direction toward provided to economy, time, and other baseline information. Page 1 of 2 pages (Exhibit A — Architect's Services) f. Meet with appropriate mutually agreed upon internal personnel, Mr. & Mrs. Russell, and selected stakeholders for relevant input and direction. g. Engage adjacent subdivision HOA as directed by OWNER. h. Review preliminary engineering constraints and opportunities and document same. i. Create Project Renderings showing isometric views of project designed in modeling software that can be used by City for marketing and grant application opportunities. (Modified) Prepare the draft master plan, which will include the preparation of alternative development and design scenarios for the park, a pre -schematic design of the park master plan illustrating the scale and relationship of the improvements, an Opinion of Probable Cost for each option recommended for the Project with each component separately itemized, a schedule of events and appropriate exhibits to indicate those solutions available to OWNER, which CONSULTANT recommends. The opinion of probable cost shall include the estimated construction costs, the estimated total costs of design, professional, and related services provided by or through CONSULANT, and, on the basis of information furnished by OWNER, allowances for other items and services included within the definition of Total Project Costs 8. Furnish five (5) review copies and one CD containing PDF's of draft master plan as described hereinabove to OWNER within seventy (70) calendar days of authorization to begin services and review it with OWNER and the Parks and Recreation Advisory Board. 9. Revise the master plan in response to OWNER's and other parties' comments, as appropriate, and furnish twelve (12) copies and a CD containing PDF's of the final copies of the master plan within ten (10) calendar days after completion of reviewing it with OWNER and the Parks and Recreation Advisory Board. 10. Present findings and recommendations along with final Master Plan to the City Council. B. (Modified) CONSULTANT's services under the Master Plan Phase will be considered complete on the date when the final copies of the master plan have been presented and accepted by the City Council. A1.01 Preliminary Design Phase (Deleted). A1.02 Final Design Phase (Deleted). A1.03 Bidding or Negotiating Phase (Deleted). A1.04 Construction Phase (Deleted). PART 2 — ADDITIONAL SERVICES A2.01 Additional Sevices Requiring OWNER's Authorization in Advance (Deleted). Page 2 of 2 pages (Exhibit A — Architect's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT_ 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. (Deleted). B. Furnish to CONSULTANT 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 CONSULTANT's assessment of initially available Project information and data and upon CONSULTANT's written request, furnish or otherwise make available such additional available Project related information and data as is reasonably required to enable CONSULTANT to complete its Basic Services. 1. (Deleted). 2. (Deleted). 3. (Deleted). 4. (Deleted). 5. (Deleted). 6. (Deleted). D. (Deleted). E. (Deleted). F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public property as required for CONSULTANT to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by CONSULTANT (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. H. (Deleted). 1. (Deleted). Page 1 of 2 pages (Exhibit B - OWNER's Responsibilities) J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by OWNER to perform or famish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value architectural, 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 1 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Payments to CONSULTANT 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 CONSULTANT C4.01 For Basic Services Having A Determined Scope —Cost not to Exceed Method of Payment A. OWNER shall pay CONSULTANT for Basic Services set forth in Exhibit A as follows: 1. (Modified) A Lump Sum Fee of $87,500.00. This amount does includes those CONSULTANT'S consultant's charges for civil engineering to address preliminary engineering constraint's and will be distributed at the completion of each phase in the following amount: 1. Master Plan Phase .......................$ 87,500.00 2. (Deleted). 3. The cost not to exceed includes compensation for CONSULTANT's services and services of its Consultants, 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 CONSULTANT'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 Initial: OWNER / ,�Q� CONSULTANT__d[L 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. (Deleted). C4.03 For Additional Services A. OWNER shall pay CONSULTANT for Additional Services as follows: 1. General. For services of CONSULTANT's employees engaged directly on the Project pursuant to paragraph Part 1 of Exhibit A of the Agreement, except for services as a consultant, 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 exceed $0.00 without the prior written consent of the Owner. 2. (Deleted). C4.04 For Reimbursable Expenses A. (Modified) When not included in compensation for Basic Services under paragraph C4.01, OWNER shall pay CONSULTANT for Reimbursable Expenses at the rate set forth in Appendix 2 of this Exhibit C. Before the OWNER shall be liable for any reimbursable expenses, the CONSULTANT must obtain prior written approval of the OWN ER of any expense that exceeds $1000.00 for which the CONSULTANT seeks reimbursement. Reimbursable Expenses shall not exceed a total of $500.00. Page 1 of 2 pages (Exhibit C - Basic Services With Determined Scope — Lump Sum Method) 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 CONSULTANT for Reimbursable Expenses will be the Project -related internal expenses actually incurred or allocated by CONSULTANT, 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 CONSULTANT's Consultant's Charges A. (Deleted). C4.06 Direct Labor Costs A. (Deleted). B. (Deleted). 4.07 Factors (Deleted). C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for CONSULTANT's services which are identified in paragraphs C4.01 will be based on to percentage of completion for assignments related to basic services plus Reimbursable Expenses. 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 RATESCHEDULE Employee Classitleation Maximum Hourly Rate Principal $170.00 Senior Project Manager $150.00 Project Architect $135.00 Project Landscape Architect $135.00 Senior Planner $135.00 Wetland Scientist $135.00 Senior Urban Forester $125.00 Natural Resource Planner $125.00 Gcop,ravhic Information Systems Planner $125.00 Natural Resource Planner $110.00 Architecture Sr. Associate $110.00 Licensed Irrigator $110.00 Landscape Architect Associate $100.00 CAD Designer II $80.00 CAD Designer I $70.00 Administrative Assistant 11 $70.00 Administrative Assistant 1 $50.00 Page 1 of 1 pages (Appendix 1 to Exhibit C Rate Schedule) APPENDIX 2 OF EXHIBIT C REIMBURSEMENT OF COSTS External Reproduction and Deliveries: Cost plus 10% Internal expenses: Cost Mileage: IRS Rate Travel: Cost Page I of 1 Pages (Appendix 2 of Exhibit C Reimbursement of Costs) This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSUL NT 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 CONSULTANT 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 CONSULTANT's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the CONSULTANT, 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 CONSULTANT'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 CONSULTANT's insurance and shall not contribute to it. Further, the CONSULTANT 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: $2,000,000 a. Coverage for "Any Auto." b. Waiver of subrogation required. Workers' Compensation Insurance Statutory Limits Employer's Liability $500,000 Page 1 of 2 Pages (Exhibit G - Insurance) Waiver of Subrogation required. Errors & Omissions (E&O) Limit: $2,000,000 a. For all engineers, and/or design companies. b. Claims -made form is acceptable. C. Coverage will be in force for three (3) years after project is completed. Upon execution of this contract, CONSULTANT 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 CONSULTANT 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 CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANT'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 Page 1 of 2 Pages (Exhibit K - Indemnification) NEGLIGENCE OF ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity. CONSULTANT 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 CONSULTANT's work to be performed hereunder. This release shall apply with respect to CONSULTANT's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Furthermore, the provisions contained in this Exhibit "K" shall survive the termination and/or expiration of this Agreement. Page 2 of 2 Pages (Exhibit K - Indemnification) STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR PROFESSIONAL SERVICES BETWEEN CITY OF BAYTOWN ("OWNER") AND BURDITT CONSULTANTS, LLC ("CONSULTANT") THIS AGREEMENT effective as of th:v y of May, 2017 ("Effective Date"). OWNER intends to engage CONSULTANT to provide professional services for the Gene and Loretta Russell Park Master Plan Project (the "Project"). Such project will entail obtaining information from City Staff as well as Gene and Loretta Russell regarding the goals and objectives for the Project and creating a master plan that will be designed to provide OWNER with a planning tool needed to forecast future development and budgets, which may include, but not be limited to, considerations for the following elements: 1. Sports fields; 2. Adequate parking provided for 5 fields with consideration given for overflow parking; 3. Concession building with an umpire's room, and moderate storage space; 4. Associated dugouts, batting cages, and warm-up spaces; 5. Restrooms for the sports fields and other facilities to serve other vicinities of Russell Park, and at the parking lot and walking/equestrian tmilheads of the Chevron site serving riders, walkers, and nature explorers (to be determined based upon Chevron discussions); 6. Play structures within reasonable walking and viewshed distance from ball fields to allow for parents to view ballgames and also see younger aged children playing at playgrounds; 7. Other amenities such as basketball, volleyball, horseshoe pits, splashpad, walking trails, covered picnic tables, disc golf routing, and smaller outdoor pavilion for birthday parties or family reunions, etc.; 8. Site drainage and sheet flow addressed by a detention device(s) that serves as an amenity for park users, as potential education on ecosystem services, and collection of storm water. Aeration should be provided at appropriate locations for adequate circulation of the pond facilities; 9. Fishing and safe water access for the public through boardwalks, dock(s) and low water areas or crossings; 10. Narrowed areas that allow for pedestrian and service vehicle (gator type) to cross; 11. Community Center to serve as meeting space, community gathering, party and small event rental, etc., to include warming room style kitchen (no commercial cooking). Additional uses pending programming sessions; 12. An open field play area that is also suitable for a unofficial youth football, lacrosse, or soccer game; 13. Opportunities for safe access by the 911 Center employees, Youth Fair, and neighborhood use; 14. Tree and landscape materials that are zone appropriate and suitable to soil conditions of the site; and 15. Infrastructure and facilities of the type and quality as to reflect intentions of OWNER to construct and operate a very high quality park. OWNER and CONSULTANT in consideration of thew mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Consultant for Professional Services Page 1 of 12 TABLE OF CONTENTS Page ARTICLE 1 - SERVICES OF CONSULTANT................................................................................................................. 3 1.01 Scope .................................. ............................................................................................................................... 3 ARTICLE 2 - OWNER'S RESPONSIBILITIES................................................................................................................. 3 2.01 General............................................................................................................................................................... 3 ARTICLE 3 - TIMES FOR RENDERING SERVICES...................................................................................................... 3 3.01 General............................................................................................................................................................... 3 3.02 Suspension......................................................................................................................................................... 3 ARTICLE 4 - PAYMENTS TO CONSULTANT............................................................................................................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ................................................ 3 4.02 Other Provisions Concerning Payments............................................................................................................ 3 ARTICLE 5 - OPINIONS OF COST................................................................................................................................... 4 5.01 Opinions of Probable Construction Cost.......................................................................................................... 4 5.02 Designing to Construction Cost Limit.............................................................................................................. 4 5.03 Opinions of Total Project Costs....................................................................................................................... 4 ARTICLE 6 - GENERAL CONSIDERATIONS................................................................................................................. 4 6.01 Standards of Performance................................................................................................................................. 4 6.02 Authorized Project Representatives.................................................................................................................. 5 6.03 Design without Construction Phase Services.................................................................................................... 5 6.04 Use of Documents............................................................................................................................................. 5 6.05 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.............................................................................................................................................. 8 7.01 Defined Terms.................................................................................................................................................. 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS............................................................................................... 11 8.01 Exhibits Included............................................................................................................................................. 11 8.02 Total Agreement.............................................................................................................................................. 11 Standard Form of Agreement Between Owner and Consultant for Professional Services Page 2 of 12 ARTICLE 1- SERVICES OF CONSULTANT ARTICLE 4 - PAYMENTS TO CONSULTANT 1.01 Scope A. CONSULTANT shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon issuance of a notice to proceed by the OWNER, CONSULTANT 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) CONSULTANT's services and compensation under this Agreement have been agreed to for the services specified in Exhibit A. CONSULTANT'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 CONSULTANT's services are delayed or suspended in whole or in part by OWNER, CONSULTANT may be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by CONSULTANT in connection with such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised, unless such delay or suspension is caused in whole or in part by the CONSULTANT, its officers, agents, or employees. If CONSULTANT causes or contributes to the delay or suspension, CONSULTANT shall have no right to seek additional compensation. 4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT A. For Basic Services. OWNER shall pay CONSULTANT for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay CONSULTANT 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 4.0I.A and 4.01.13, OWNER shall pay CONSULTANT for Reimbursable Expenses incurred by CONSULTANT and its Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to CONSULTANT incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and CONSULTANT shall not make a claim against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with OWNER's standard processing practices and will be submitted to OWNER monthly via mail or email by CONSULTANT, unless otherwise agreed. CONSULTANT shall supply detailed back-up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. Invoices shall be received by the OWNER not later than sixty (60) days from the date the CONSULTANT and/or its subconsultants perform the services or incur the expense. Failure by CONCULTANT to comply with the requirements herein in a timely manner with this requirement shall result in the CONSULTANT's invoice being denied. B. (Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to make any payment due CONSULTANT for services and expenses within 30 days after receipt of CONSULTANT's invoice and the required backup documentation therefor, the amounts due CONSULTANT will accrue interest at the rate set forth in Section 2251.025 of the Texas Government Code after the 30th day. CONSULTANT may after giving seven days' written notice to OWNER suspend services under this Agreement until CONSULTANT has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that Standard Form of Agreement Between Owner and Consultant for Professional Services Page 3 of 12 CONSULTANT 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 CONSULTANT 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, CONSULTANT 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 CONSULTANT's Costs. Records of CONSULTANT's costs pertinent to CONSULTANT'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 CONSULTANT'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 CONSULTANT's estimated total compensation. G. (Added) Indebtedness. If CONSULTANT, 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 CONSULTANT has incurred a debt, the OWNER's Director of Finance shall immediately notify the CONSULTANT in writing. If the CONSULTANT 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 CONSULTANT under this Agreement, and the CONSULTANT waives any recourse therefor. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. CONSULTANT's opinions of probable Construction Cost provided for herein are to be made on the basis of CONSULTANT's experience and qualifications and represent CONSULTANT's best judgment as an experienced and qualified professional generally familiar with the industry. However, since CONSULTANT 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, CONSULTANT cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by CONSULTANT. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 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 services to be performed or furnished under this Agreement will be the care and skill ordinarily used by members of the applicable disciplines, including, but not limited to, architects 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 documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. CONSULTANT shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER -furnished information upon which CONSULTANT is authorized to rely as provided in Section 6.01.E. C. CONSULTANT shall perform or furnish professional architectural, engineering and related services in Standard Form of Agreement Between Owner and Consultant for Professional Services Page 4 of 12 all phases of the Project to which this Agreement applies. Such professionals shall be appropriately licensed and/or registered to practice in the State of Texas. CONSULTANT shall serve as OWNER's prime professional for the Project. CONSULTANT shall employ such professionals as CONSULTANT deems necessary to assist in the performance or famishing of the services. CONSULTANT shall not be required to employ any professional unacceptable to CONSULTANT. D. CONSULTANT 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 CONSULTANT's scope of services, times of performance, or compensation. E. (Modified) OWNER shall be responsible for, and CONSULTANT may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to CONSULTANT pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. CONSULTANT 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 CONSULTANT. G. Prior to the commencement of the Construction Phase, OWNER shall notify CONSULTANT of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that CONSULTANT will be requested to provide to OWNER or third parties in connection with the Project. OWNER and CONSULTANT 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 CONSULTANT to provide the notices or certifications requested H. (Modified) CONSULTANT shall not be required to sign any documents, no matter by whom requested, that would result in CONSULTANT's having to certify, guarantee or warrant the existence of conditions whose existence CONSULTANT cannot ascertain; provided, that CONSULTANT has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. During the Construction Phase, CONSULTANT shall not supervise, direct, or have control over Contractor's work, nor shall CONSULTANT 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) CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve CONSULTANT from liability for any such failure about which CONSULTANT knew or should have known existed in the exercise of CONSULTANT's services under this Agreement. K. (Modified) CONSULTANT 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 CONSULTANT's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing 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 CONSULTANT. 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, CONSULTANT and OWNER shall designate specific individuals to act as CONSULTANT's and OWNER's representatives with respect to the services to be performed or furnished by CONSULTANT and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services (Deleted). 6.04 Use of Documents A. (Modified) Upon execution of this Agreement, the CONSULTANT grants to the OWNER an ownership interest Standard Form of Agreement Between Owner and Consultant for Professional Services Page 5 of 12 in the Instruments of Service. The CONSULTANT shall obtain similar interests from its consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the CONSULTANT 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 CONSULTANT 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 CONSULTANT's name and all references to the CONSULTANT, 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 CONSULTANT, its officers, and employees and sub - consultants, as well as their successors and assigns. B. (Modified) Copies of OWNER -furnished data that may be relied upon by CONSULTANT are limited to the printed copies that are delivered to CONSULTANT pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to CONSULTANT are only for convenience of CONSULTANT. 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 CONSULTANT to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60 -day acceptance period. CONSULTANT shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, CONSULTANT 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 CONSULTANT 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 CONSULTANT 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 CONSULTANT to fiuther compensation at rates to be agreed upon by OWNER and CONSULTANT. 6.05 Insurance A. CONSULTANT shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. (Deleted). C. (Deleted). D. (Deleted). E. (Deleted). F. At any time, OWNER may request that CONSULTANT, 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 CONSULTANT, and if commercially available, CONSULTANT shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: 1. For cause, Standard Form of Agreement Between Owner and Consultant for Professional Services Page 6 of 12 a. (Modified) By either party upon 30 days' written notice in the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party; or b. By CONSULTANT upon seven days' written notice if CONSULTANT is being requested by OWNER to furnish or perform services contrary to CONSULTANT's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof-, provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by CONSULTANT. B. (Deleted). 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 CONSULTANT each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and CONSULTANT (and to the extent permitted by paragraph 6.08.13 the assigns of OWNER and CONSULTANT) 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 CONSULTANT 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 CONSULTANT 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 CONSULTANT 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 (Deleted). 6.10 Hazardous Environmental Condition A. OWNER represents to CONSULTANT 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 CONSULTANT 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, CONSULTANT 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 CONSULTANT's scope of services does not include any services related to a Hazardous Environmental Condition. In the event CONSULTANT or any other party encounters a Hazardous Environmental Condition, CONSULTANT may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that CONSULTANT is performing professional services for OWNER and that Standard Form of Agreement Between Owner and Consultant for Professional Services Page 7 of 12 CONSULTANT is not and shall not be required to become an "an anger," "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 CONSULTANT's activities under this Agreement. F. If CONSULTANT's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify CONSULTANT's terminating this Agreement for cause on 30 days' notice. 6.11 Allocation of Risks 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 CONSULTANT, 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. A. (Modified) Indemnification. See Exhibit K. 6.16 Headings B. (Added) Notwithstanding anything to the contrary contained in this Agreement, the OWNER and CONSULTANT hereby agree that no claim or dispute between the OWNER and CONSULTANT 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, CONSULTANT consents to be joined in the arbitration proceeding if CONSULTANT'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. 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 CONSULTANT in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement --This "Standard Form of Agreement between OWNER and CONSULTANT for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment—The form acceptable to CONSULTANT which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos --Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established Standard Form of Agreement Between Owner and Consultant for Professional Services Page 8 of 12 by the United States Occupational Safety and Health Administration. 6. Basic Services --The services to be performed for or furnished to OWNER by CONSULTANT 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 CONSULTANT, 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 CONSULTANT. Construction Cost does not include costs of services of CONSULTANT 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 professional's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price --The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times—The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Final Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by CONSULTANT's written recommendation of final payment. 16. Contractor—An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period—The time after Final Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Final Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective --An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to CONSULTANT'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 CONSULTANT to OWNER pursuant to this Agreement. 20. Drawings --That part of the Contract Documents prepared or approved by CONSULTANT which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 9 of 12 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. Consultants—Individuals or entities having a contract with CONSULTANT to furnish services with respect to this Project as CONSULTANT's independent professional associates, consultants, subcontractors, or vendors. The term CONSULTANT includes its Consultants. 24. Field Order A written order issued by CONSULTANT which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25. Final Completion shall mean that all work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to subcontractors have been made, all documentation and warranties have been submitted, all closeout documents have been executed and approved by the OWNER, and the Project has been finally accepted by the OWNER. 26. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 27. Hazardous Environmental Condition—The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste—The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Laws and Regulations; Laws or Regulations— Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's—Polychlorinated biphenyls. 31. Petroleum --Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Radioactive Materials—Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings—The Drawings as issued for construction on which the CONSULTANT, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which CONSULTANT considers significant based on record documents fiirnished by Contractor to CONSULTANT and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses—The expenses incurred directly by CONSULTANT in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay CONSULTANT as indicated in Exhibit C. 35. Resident Project Representative—The authorized representative of CONSULTANT, if any, assigned to assist CONSULTANT at the Site during the Construction Phase. The Resident Project Representative will be CONSULTANT's agent or employee and under CONSULTANT'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 CONSULTANT to illustrate some portion of the Work. 38. Site—Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which Standard Form of Agreement Between Owner and Consultant for Professional Services Page 10 of 12 the Work is to be performed, rights-of-way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications --That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion --The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of CONSULTANT, 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 CONSULTANT 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 CONSULTANT, 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 -architectural 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, "CONSULTANT's Services," consisting of two (2) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to CONSULTANT for Services and Reimbursable Expenses," consisting of two (2) pages. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative," is not used. E. Exhibit E, "Notice of Acceptability of Work," is not used. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. I. Exhibit I, "Allocation of Risks," is not used J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and CONSULTANT 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 Consultant 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: Scott Johnson Title: Director of Parks and Recreation Phone Number: (281) 420-6533 Facsimile Number. (281) 420-6586 E -Mail Address: scottJohnsonaa.baytown.org CONSULTANT: BURDITT CONSULTANTS, INC. Signature: Printed Name: Gtl✓�RL�S /TURD17—T Title: /%•fNAG//4}L^=/NG{p{yL��i�S/Ni Date Signed: Address for giving notices: 310 Longmire Conroe, Texas 77304 Designated Representative (paragraph 6.02.A): Name: Charles Burditt Title: Managing Principal1 r'--4AP&n't Phone Number. (936) 756-6041 Facsimile Number. (936) 539-3240 E -Mail Address: cburdin(@,burditt.co Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 ink This is EXHIBIT A, consisting of 2 pages, referred to in and part of the Agreement between OW_N R and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT CONSULTANT's Services Article I of the Agreement is amended and supplemented to include the following agreement of the parties. CONSULTANT shall provide Basic and Additional Services as set forth below. PART 1 — BASIC SERVICES (Modified) A1.005 Master Plan Phase. A. CONSULTANT shall: 1. Consult with OWNER to define and clarify OWNER's requirements for the Project. 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 CONSULTANT's Basic Services, and assist OWNER in obtaining such data and services. 3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by CONSULTANT. 4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's requirements for the Project. 5. (Modified) Attend meetings with OWNER and OWNER's consultants, designated boards, commissions and/or City Council to receive input into OWNER'S requirements for the Project and evaluate potential solutions available to OWNER. 6. (Modified) Perform or provide the following additional Master Plan Phase tasks or deliverables: a. Conduct initial Project Kickoff Meeting with OWNER. (1) During this meeting, a recommended project schedule will be presented covering an approximate planning and design period of 10 weeks. (2) Tasks will be addressed and goals and objectives reaffirmed. (3) A recommended schedule for internal engagement of Staff, Elected Officials, and City identified users will be developed between all team members. (4) Coordination concerning design intentions and preliminary program needs, improvements and limits of work, and team member roles will be addressed. b. Receive and review Geotechnical Study/Report as available for future site structures, parking, etc., and available survey information such as topography, boundary, easements, and utilities. c. Review applicable documents as supplied by OWNER as to relevant regulatory and current code requirements. d. Research preliminary site issues and field inspection regarding general topography, accessibility, drainage, and suitability for intended uses; however, USACE permitting or wetland and Endangered Species Mitigation is excluded from this Master Plan Phase. e. Develop initial summary from Staff meetings and site visits detailing the facts, goals, concepts, needs with direction toward provided to economy, time, and other baseline information. Page I of 2 pages (Exhibit A — Architect's Services) f. Meet with appropriate mutually agreed upon internal personnel, Mr. & Mrs. Russell, and selected stakeholders for relevant input and direction. g. Engage adjacent subdivision HOA as directed by OWNER. h. Review preliminary engineering constraints and opportunities and document same. i. Create Project Renderings showing isometric views of project designed in modeling software that can be used by City for marketing and grant application opportunities. (Modified) Prepare the draft master plan, which will include the preparation of alternative development and design scenarios for the park, a pre -schematic design of the park master plan illustrating the scale and relationship of the improvements, an Opinion of Probable Cost for each option recommended for the Project with each component separately itemized, a schedule of events and appropriate exhibits to indicate those solutions available to OWNER, which CONSULTANT recommends. The opinion of probable cost shall include the estimated construction costs, the estimated total costs of design, professional, and related services provided by or through CONSULANT, and, on the basis of information furnished by OWNER, allowances for other items and services included within the definition of Total Project Costs 8. Furnish five (5) review copies and one CD containing PDF's of draft master plan as described hereinabove to OWNER within seventy (70) calendar days of authorization to begin services and review it with OWNER and the Parks and Recreation Advisory Board. 9. Revise the master plan in response to OWNER's and other parties' comments, as appropriate, and furnish twelve (12) copies and a CD containing PDF's of the final copies of the master plan within ten (10) calendar days after completion of reviewing it with OWNER and the Parks and Recreation Advisory Board. 10. Present findings and recommendations along with final Master Plan to the City Council. B. (Modified) CONSULTANT's services under the Master Plan Phase will be considered complete on the date when the final copies of the master plan have been presented and accepted by the City Council. A1.01 Preliminary Design Phase (Deleted). A 1.02 Final Design Phase (Deleted). A1.03 Bidding or Negotiating Phase (Deleted). A1.04 Construction Phase (Deleted). PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance (Deleted). Page 2 of 2 pages (Exhibit A — Architect's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CO SU TANT for Professional Services dated Initial: OWNER / CONSULTANT (moi OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the partes. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. (Deleted). B. Furnish to CONSULTANT 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 CONSULTANT's assessment of initially available Project information and data and upon CONSULTANT's written request furnish or otherwise make available such additional available Project related information and data as is reasonably required to enable CONSULTANT to complete its Basic Services. I. (Deleted). 2. (Deleted). 3. (Deleted). 4. (Deleted). 5. (Deleted). 6. (Deleted). D. (Deleted). E. (Deleted). F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public property as required for CONSULTANT to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by CONSULTANT (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. H. (Deleted). 1. (Deleted). Page 1 of 2 pages (Exhibit B - OWNER's Responsibilities) I Advise CONSULTANT 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 architectural, 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 1 pages, referred to in and part of the Agreement between OWNER and CIV L ANT for Professional Services dated Payments to CONSULTANT 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 CONSULTANT C4.01 For Basic Services Having A Determined Scope —Cost not to Exceed Method of Payment A. OWNER shall pay CONSULTANT for Basic Services set forth in Exhibit A as follows: 1. (Modified) A Lump Sum Fee of $87,500.00. This amount does includes those CONSULTANT'S consultant's charges for civil engineering to address preliminary engineering constraint's and will be distributed at the completion of each phase in the following amount: 1. Master Plan Phase .......................$ 87,500.00 2. (Deleted). 3. The cost not to exceed includes compensation for CONSULTANT's services and services of its Consultants, 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 CONSULTANT'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 Initial: OWNER sa2/ CONSULTANT 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 ofPayment A. (Deleted). C4.03 For Additional Services A. OWNER shall pay CONSULTANT for Additional Services as follows: 1. General. For services of CONSULTANT's employees engaged directly on the Project pursuant to paragraph Part 1 of Exhibit A of the Agreement, except for services as a consultant, 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 exceed $0.00 without the prior written consent of the Owner. 2. (Deleted). C4.04 For Reimbursable Expenses A. (Modified) When not included in compensation for Basic Services under paragraph C4.01, OWNER shall pay CONSULTANT for Reimbursable Expenses at the rate set forth in Appendix 2 of this Exhibit C. Before the OWNER shall be liable for any reimbursable expenses, the CONSULTANT must obtain prior written approval of the OWNER of any expense that exceeds $1000.00 for which the CONSULTANT seeks reimbursement. Reimbursable Expenses shall not exceed a total of $500.00. Page l of 2 pages (Exhibit C - Basic Services With Determined Scope— Lump Sum Method) 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 CONSULTANT for Reimbursable Expenses will be the Project -related internal expenses actually incurred or allocated by CONSULTANT, 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 CONSULTANT's Consultant's Charges A. (Deleted). C4.06 Direct Labor Costs A. (Deleted). B. (Deleted). 4.07 Factors (Deleted). C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for CONSULTANT's services which are identified in paragraphs C4.01 will be based on to percentage of completion for assignments related to basic services plus Reimbursable Expenses. 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 RATESCHEDULE Employee ClassiQeation Maximum Hourly Rate Principal $170.00 Senior Project Manager $150.00 Project Architect $135.00 Project Landscape Architect $135.00 Senior Planner $135.00 Wetland Scientist $135.00 Senior Urban Forester $125.00 Natural Resource Planner $125.00 -Geographic Information Systems Planner $125.00 Natural Resource Planner $110.00 Architecture Sr. Associate $110.00 Licensed Irrigator $110.00 Architect Associate $100.00 -Landscape CAD Designer II $80.00 CAD Designer I $70.00 Administrative Assistant II $70.00 Administrative Assistant 1 $50.00 Page 1 of 1 pages (Appendix 1 to Exhibit C Rate Schedule) APPENDIX 2 OF EXHIBIT C REIMBURSEMENT OF COSTS External Reproduction and Deliveries: Cost plus 10% Internal expenses: Cost Mileage: IRS Rate Travel: Cost Page 1 of 1 Pages (Appendix 2 of Exhibit C — Reimbursement of Costs) This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated V3 ti Initial: OWNER CONSULTANT _ Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 /nsumnce Throughout the term of this Agreement, the CONSULTANT 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 CONSULTANT's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the CONSULTANT, 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 CONSULTANT'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 CONSULTANT's insurance and shall not contribute to it. Further, the CONSULTANT 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: $2,000,000 a. Coverage for "Any Auto." b. Waiver of subrogation required. Workers' Compensation Insurance Statutory Limits Employer's Liability $500,000 Page 1 of 2 Pages (Exhibit G - Insurance) Waiver of Subrogation required. Errors & Omissions (E&O) Limit: $2,000,000 a. For all engineers, and/or design companies. b. Claims -made form is acceptable. C. Coverage will be in force for three (3) years after project is completed. Upon execution of this contract, CONSULTANT 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 CONSULTANT 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 'I;-/ for Professional Services dated Initial: OWNER CONSULTANT CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY HIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANT'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 Page I of 2 Pages (Exhibit K - Indemnification) NEGLIGENCE OF ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity. CONSULTANT 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 CONSULTANT's work to be performed hereunder. This release shall apply with respect to CONSULTANT's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Furthermore, the provisions contained in this Exhibit "K" shall survive the termination and/or expiration of this Agreement. Page 2 of 2 Pages (Exhibit K - Indemnification)