Ordinance No. 13,734ORDINANCE NO. 13,734
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 THE PROFESSIONAL SERVICES
AGREEMENT WITH MOFFATT & NICHOL FOR ENGINEERING SERVICES FOR
THE DESIGN OF THE BAYLAND MARINA MAINTENANCE DREDGING
PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN
AMOUNT NOT TO EXCEED EIGHTY-NINE THOUSAND AND N0I100 DOLLARS
($89,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to the Professional Services Agreement
with Moffatt & Nichol for engineering services for the design of the Bayland Marina Maintenance
Dredging 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 Moffatt &
Nichol in an amount not to exceed EIGHTY-NINE THOUSAND AND NO/100 DOLLARS ($89,000.00)
for engineering services in accordance with the agreement authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) or less,
provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five
percent (25%).
INTRODUCED, READ, and PASSED by the affirmative v tl of the City Council of the City of
Baytown, this the 12`h day of April, 2018.
DONCARLOS,
ATT ST:
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LETICIA GARZA, City Clern o N
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APPROVED AS TO FORM:
ACIO RAMIREZ, SR., CWAttorney
Attorney
1lcobfsOIVegaWaren\FileslCity Council. Ordinances\201 S\April 12\MofattNicholAgreement4BaylandMarinaMaintenanceDredgingProject.doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the day of February, 2018 ("Effective Date").
Between
City of Baytown ("OWNER")
and
Moffatt & Nichol ("CONSULTANT")
OWNER intends to contract to provide professional engineering design and consulting services related to the
Bayland Marina Maintenance Dredging Project ("Project").
OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 12
TABLE OF CONTENTS
Page
ARTICLE 1 - SERVICES OF 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.................................................................................................... 6
6.04 Use of Documents............................................................................................................................................. 6
6.05 Insurance............................................................................................................................................................ 6
6.06 Termination....................................................................................................................................................... 6
6.07 Controlling Law................................................................................................................................................. 7
6.08 Successors, Assigns, and Beneficiaries............................................................................................................. 7
6.09 Dispute Resolution............................................................................................................................................ 7
6.10 Hazardous Environmental Condition................................................................................................................ 7
6.11 Allocation of Risks............................................................................................................................................ 8
6.12 Notices............................................................................................................................................................... 8
6.13 Survival.............................................................................................................................................................. 8
6.14 Severability ........................................................................................................................................................ 8
6.15 Waiver............................................................................................................................................................... 8
6.16 Headings............................................................................................................................................................ 8
ARTICLE 7 - DEFINITIONS.............................................................................................................................................. 8
7.01 Defined Terms.................................................................................................................................................. 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS............................................................................................... 11
8.01 Exhibits Included............................................................................................................................................. 11
8.02 Total Agreement.............................................................................................................................................. 11
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1- SERVICES OF CONSULTANT
1.01 Scope
A. CONSULTANT shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. (modified) Upon issuance of a notice to proceed by
the OWNER, 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 design of the Project together with other 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 tern
"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, among other things, such
delay or suspension and reactivation and the fact that the time
for performance under this Agreement has been revised,
unless such delay or suspension is caused in whole or in part
by the 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.
ARTICLE 4 - PAYMENTS TO CONSULTANT
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 4.01.A and
4.01.13, OWNER shall pay CONSULTANT for Reimbursable
Expenses incurred by CONSULTANT and CONSULTANT's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to 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 ENGINEER to comply with the requirements
herein in a timely manner with this requirement shall result in
the ENGINEER'S invoice being denied.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
Section 2251.025 of the Texas Government Code (or the
maximum rate of interest permitted by law, if less) 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
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 Designing to Construction Cost Limit
A. (Deleted)
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
CONSULTANT under this Agreement will be the care and
skill ordinarily used by members of CONSULTANT's
profession practicing under similar circumstances at the same
time and in the same locality.
B. (Modified) CONSULTANT shall be responsible for
the technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. CONSULTANT shall
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
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 engineenng and related services in all phases of
the Project to which this Agreement applies. CONSULTANT
shall serve as OWNER's prime professional for the Project.
Such professionals shall be appropriately licensed and/or
registered to practice in the State of Texas. CONSULTANT
may employ such CONSULTANT's Consultants as
CONSULTANT deems necessary to assist in the performance
or furnishing of the services. CONSULTANT shall not be
required to employ any CONSULTANT's Consultant
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.
I (Modified) CONSULTANT neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to famish 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,
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
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
in the Instruments of Service. The CONSULTANT shall
obtain similar interests from the OWNER and the
CONSULTANT's 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 CONSULTANT.
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 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
of CONSULTANT, and if commercially available,
CONSULTANT shall obtain and shall require
CONSULTANT's Consultants to obtain such additional
insurance coverage, different limits, or revised deductibles for
such periods of time as requested by OWNER, and Exhibit G
will be supplemented to incorporate these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon thirty (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 (7) 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.
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 6.083 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
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) wan -ants 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
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. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given personally,
or by registered or certified mail postage prepaid, or by a
commercial courier service. Additionally, notices may be
given via facsimile or by electronic mail if such notice is also
given personally, or by registered or certified mail or by a
commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and 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.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
1. Addenda—Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
2. Additional Services—The services to be performed
for or 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 by the
United States Occupational Safety and Health Administration.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
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 CONSULTANT'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.
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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
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. CONSULTANT's 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
CONSULTANT's 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 famished 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 the
Work is to be performed, rights-of-way and easements for
access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
39. Specifications—That part of the Contract Documents
consisting of written technical descriptions of materials,
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
equipment, systems, standards, and workmanship as applied to
the Work and certain administrative details applicable thereto.
40. Substantial Completion—The time at which the Work
(or a specified part thereof) has progressed to the point where,
in the opinion of 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 -engineering or non-technical
rather than strictly construction -related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "CONSULTANT's Services," consisting
of seven (7) 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 (Deleted)
E. Exhibit E, "Notice of Acceptability of Work," is
(Deleted)
F. Exhibit F, "Construction Cost Limit," is (Deleted)
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is (Deleted)
I. Exhibit I, "Allocation of Risks," is (Deleted)
J. Exhibit J, "Special Provisions" is (Deleted)
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 Engineer for Professional Services
Page 11 of 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
Signature
Printed Name: Richard L. Davis
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02.A):
Name: Jose A. Pastrana, P.E.
Title: Director of Engineering
Phone Number: (281) 420-7154
Facsimile Number: (281)420-6586
E -Mail Address: jose.pastrana@baytown.org
CONSULTANT: MOFFATT & NICHOL
Signature
Printed Name:
Title:
Date Signed:
Address for giving notices:
11011 Richmond Ave., Suite 200
Houston, TX 77042
Designated Representative (paragraph 6.02.A):
Name:
Title:
Phone Number: (713) 977-7372
Facsimile Number: (713) 977-7379
E-MailAddress:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 7 pages, referred to in and
part of the Agreement between OWNER and
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)
A1.01 (Deleted)
A1.02 Design Phase
A. CONSULTANT shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B, which are not part of CONSULTANT's Basic Services, and assist OWNER in obtaining
such data and services.
3. (Modified) Identify, consult with, and analyze requirements of utility companies and governmental
authorities having jurisdiction to approve the portions of the Project designed or specified by
CONSULTANT, including, but not limited to, mitigating measures identified in the environmental
assessment (if any).
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER to receive input into OWNER'S requirements for the
Project and evaluation of potential solutions available to OWNER and to discuss and finalize design
criteria and acquire pertinent information regarding the Project.
6. (Modified) Prepare Drawings indicating the scope, extent, and character of the Work to be performed and
furnished by Contractor. Specifications will be prepared, where appropriate, in conformance with the 16 -
division format of the Construction Specifications Institute or other format agreed to in writing by
OWNER and CONSULTANT.
7. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for
permits from or approvals of governmental authorities having jurisdiction to review or approve the final
design of the Project and assist OWNER in consultations with appropriate authorities.
8. Develop and advise OWNER of any adjustments to the opinion of probable Construction Cost and any
adjustments to Total Project Costs known to CONSULTANT throughout the Design Phase.
9. Perform or provide the following additional Design Phase tasks or deliverables:
Page 1 of 7 Pages
(EXHIBIT A - Scope of Work)
Task 1: Construction Drawings
a. Develop construction drawings (cross sections and plans) outlining the design dredge depth
and project footprint (inclusive of any advance maintenance and over- dredge allowances).
b. Review prior permitted disposal alternatives (including Spillman and Alexander Islands) and an
assessment of whether these disposal areas remain viable.
c. Provide, at a minimum, the following drawings, which will be issued at 60%. 90%, and 100%
completion.
• Title Sheet (One Sheet)
• General Notes & Abbreviations (One Sheet)
• Sediment Sampling Locations (One Sheet)
• Dredge Plan & Sections (Three Sheets)
• Dredge Disposal Areas (Two Sheets)
d. Develop technical plans and specifications for the dredging and disposal. The specifications
will provide details on dredging methods, disposal. and requirements to meet State water quality
standards.
e. Provide the following deliverables at 60%, 90% and 100% completion, consisting of two hardcopy
drawings (1 full-size and 1 half-size). a bound hard copy of specifications, electronic files of
drawings in AutoCAD and .pdf formats, electronic files of technical specifications in .pdf format.
Task 2: Environmental Sediment Sampling
a. Develop a sampling plan with the number, location and depth of the samples.
• Environmental sediment sampling is required to place dredged material in the confined
placement areas owned by the Port of Houston Authority (PHA).
• It is anticipated that sixteen (16) samples, spread across the marina and channels, will be
required to meet the criteria established by the PHA.
• Sample depth should be representative of the depth of the dredge cut, which is expected to
range from 1 to 4 feet below the existing mud line, based on the recently completed
bathymetric survey (2017).
• The plan will also outline the analytical constitutes and parameters to be analyzed.
b. Present the sampling plan to OWNER and the PHA Environmental Affairs Department and obtain
the appropriate approvals.
c. After obtaining the requisite approvals, cause CONSULTANT's consulting engineers to collect the
necessary subsurface samples.
d. Analyze or cause to be analyzed by ALS Laboratory the samples for metals, PCBs, and pesticides
in accordance with the procedures specified by the PHA.
e. Obtain approval of PHA of the laboratory test results.
f. Provide a Sediment Sampling Report and an ALS Laboratory Report.
Task 3: Maintenance Dredging Permitting
a. Coordinate with the appropriate regulatory agencies to obtain verification of the use of the NWP
permit.
b. Attend pre -application meeting with regulatory agencies as required.
c. Prepare cover letter, permit application and supporting permit drawings for local, state, and federal
permit applications and submit to regulatory agencies . The 60% construction drawings identified
in Task 1 will form the basis of the permitting drawings.
d. Propose alternatives for the dredging method (hydraulic vs. mechanical)
e. Propose alternatives for the disposal of the dredged material.
f. Provide a Permit Application & Drawings
g. Assist the OWNER in obtaining the necessary permit.
10. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other
advisors, as appropriate, and assist OWNER in the preparation of other related documents. Deliverables shall
be completed within the time frames specified in the following schedule:
Page 2 of 7 Pages
(EXHIBIT A - Scope of Work)
11. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation, including
plans and specifications, were originally prepared to reflect these items, as reasonably requested by OWNER,
so long as this/these request(s) is made prior to the preparation of the final bid documents.
B. In the event that the Work designed or specified by CONSULTANT is to be performed or furnished under
more than one prime contract, or if CONSULTANT's services are to be separately sequenced with the work of one or
more prime Contractors (such as in the case of fast -tracking), OWNER and CONSULTANT shall, prior to
commencement of the Final Design Phase, develop a schedule for performance of CONSULTANT's services during the
Final Design, Bidding or Negotiating, Construction, and Post -Construction Phases in order to sequence and coordinate
properly such services as are applicable to the work under such separate prime contracts. This schedule is to be
prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to
proceed concurrently.
C. The number of prime contracts for Work designed or specified by CONSULTANT upon which the
CONSULTANT's compensation has been established under this Agreement is one (1).
D. (Modified) CONSULTANT's services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A1.03.A.6 have been delivered to and accepted by OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, CONSULTANT
shall:
1. Assist OWNER in advertising for and obtaining bids for the Work and provide 15 sets of plans and
specifications.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables:
a Develop a list of potential contractors
b. Provide reference letter for bid award
5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts
for the Work.
6. (Added) Assist in connection with Bid protests, rebidding, or re -negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
Page 3 of 7 Pages
(EXHIBIT A - Scope of Work)
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, CONSULTANT shall:
General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of CONSULTANT as assigned in said General Conditions shall not be
modified, except as CONSULTANT may otherwise agree in writing. All of OWNER's instructions
to Contractor will be issued through CONSULTANT, who shall have authority to act on behalf of
OWNER in dealings with Contractor to the extent provided in this Agreement and said General
Conditions except as otherwise provided in writing. CONSULTANT shall attend on-site progress
meetings as requested by OWNER and maintain meeting minutes, on-site progress photos and site
conditions, as appropriate. CONSULTANT shall make required submittals or assist the OWNER in
making required submittals as requested by the OWNER to FEMA documenting technical and
construction aspects of the project.
2. (Modified) Construction and Materials Testing. Assist the OWNER in obtaining construction
material testing, including concrete inspections, concrete test cylinders, reinforcing steel inspection, as
appropriate, and perform an engineering report review as necessary for the Project.
3. Pre -Construction Conference. Participate in a Pre -Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating
the Work which in CONSULTANT's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests, and as CONSULTANT and/or OWNER
deems necessary, in order to observe as an experienced and qualified design professional the
progress and quality of the Work. Such visits and observations by CONSULTANT, and the
Resident Project Representative, if any, are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to CONSULTANT in this Agreement
and the Contract Documents, but rather are to be limited to spot checking, selective sampling,
and similar methods of general observation of the Work based on CONSULTANT's exercise of
professional judgment as assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations, CONSULTANT will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and
CONSULTANT shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of CONSULTANT's visits to, and representation by the Resident
Project Representative, if any, at the Site, will be to enable CONSULTANT to better carry out
the duties and responsibilities assigned to and undertaken by CONSULTANT during the
Construction Phase, and, in addition, by the exercise of CONSULTANT's efforts as an
experienced and qualified design professional, to provide for OWNER a greater degree of
confidence that the completed Work will substantially conform to the Contract Documents and
that the integrity of the design concept of the completed Project as a functioning whole as
indicated in the Contract Documents has been implemented and preserved by Contractor.
CONSULTANT shall not, during such visits or as a result of such observations of Contractor's
work in progress, supervise, direct, or have control over Contractor's work, nor shall
CONSULTANT have authority over or responsibility for the means, methods, techniques,
sequences, or procedures of construction selected by Contractor, for safety precautions and
Page 4 of 7 Pages
(EXHIBIT A - Scope of Work)
programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and performing the Work. Accordingly,
CONSULTANT neither guarantees the performance of any Contractor nor assumes
responsibility for any Contractor's failure to furnish and perform its work in accordance with the
Contract Documents.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, CONSULTANT believes that
such work will not produce a completed Project that substantially conforms to the Contract
Documents or that it will prejudice the integrity of the design concept of the completed Project as a
functioning whole as indicated in the Contract Documents.
7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from the
Contract Documents. CONSULTANT may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the design
concept of the completed Project as a functioning whole as indicated in the Contract Documents.
CONSULTANT shall log and track all of contractor's submittals and expedite reviews as may be
required by OWNER. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. CONSULTANT has an obligation to meet any Contractor's submittal schedule that has
earlier been acceptable to CONSULTANT.
10. Substitutes and "or -equal. " Evaluate and determine the acceptability of substitute or "or -equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. CONSULTANT's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. CONSULTANT shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show
partiality to OWNER or Contractor.
13. Applications for Payment. Based on CONSULTANT's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute CONSULTANT's
Page 5 of 7 Pages
(EXHIBIT A - Scope of Work)
representation to OWNER, based on such observations and review, that, to the best of
CONSULTANT's knowledge, information and belief, Contractor's work has progressed to the
point indicated, the quality of such work is substantially in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract
Documents and to any other qualifications stated in the recommendation), and the conditions
precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as
it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price
work, CONSULTANT's recommendations of payment will include final determinations of
quantities and classifications of Contractor's work (subject to any subsequent adjustments
allowed by the Contract Documents). The responsibilities of CONSULTANT contained in
paragraph A1.04.A.5.a are expressly subject to the limitations set forth in paragraph A1.04.A.5.b
and other express or general limitations in this Agreement and elsewhere.
b. By recommending any payment, CONSULTANT shall not thereby be deemed to have
represented that observations made by CONSULTANT to check the quality or quantity of
Contractor's work as it is performed and furnished have been exhaustive, extended to every
aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the
responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract
Documents. Neither CONSULTANT's review of Contractor's work for the purposes of
recommending payments nor CONSULTANT's recommendation of any payment including final
payment will impose on CONSULTANT responsibility to supervise, direct, or control
Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of
construction or safety precautions or programs incident thereto, or Contractor's compliance with
Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will
also not impose responsibility on CONSULTANT to make any examination to ascertain how or
for what purposes Contractor has used the moneys paid on account of the Contract Price, or to
determine that title to any portion of the work in progress, materials, or equipment has passed to
OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there
may not be other matters at issue between OWNER and Contractor that might affect the amount
that should be paid.
14 Project Management. Provide support throughout the duration of the project to coordinate the input from
the various federal and state agencies, submittal of documents and overall progress.
Perform or provide the following additional Design Phase tasks or deliverables:
15. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. CONSULTANT will
compile this information as provided by Contractor, and deliver three (3) copies of the same to
OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and
required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings,
Samples and other data approved as provided under paragraph A1.04.A.9, and the annotated record
documents which are to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such CONSULTANT's review will be limited as provided in
paragraph A1.04.A.9.
c. CONSULTANT shall transmit these documents to OWNER within thirty days of receipt of
documents from Contractor.
d. (Added) Prepare and furnishing to OWNER Record Drawings electronically in a format approved by
the OWNER and on mylar showing appropriate record information based on Project annotated record
documents received from Contractor.
Page 6 of 7 Pages
(EXHIBIT A - Scope of Work)
16. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that to
the best of CONSULTANT's knowledge, information and belief and upon the exercise of
CONSIT[ TANT'S due diligence, the Work is acceptable and is in compliance with the Contract
Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractors. If the
Project involves more than one prime contract as indicated in paragraph A1.02.C, Construction Phase services may be
rendered at different times in respect to the separate contracts.
C. Limitation of Responsibilities. CONSULTANT shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of
the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform or furnish the Work in
accordance with the Contract Documents.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
(Deleted)
A2.02 Required Additional Services
(Deleted)
Page 7 of 7 Pages
(EXHIBIT A - Scope of Work)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
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. Provide CONSULTANT with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and famish copies of all design and construction standards which OWNER
will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms,
conditions, and related documents for CONSULTANT to include in the Bidding Documents, when applicable.
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 and Additional Services.
1. (Deleted)
2. (Deleted)
3. (Deleted)
4. (Deleted)
5. (Deleted)
6. (Deleted)
D. (Deleted)
E. (Modified) Authorize CONSULTANT to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public and private
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.
Page 1 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
H. (Deleted)
I. (Deleted)
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 engineering, and constructability review.
K. (Deleted)
L. (Deleted)
M. (Deleted)
N. (Deleted)
Page 2 of 2 Pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
Pavments to CONSULTANT for Services and Reimbursable Exnenses
Article 4 of the Agreement is amended and supplemented
to include the following agreement of the parties: C4.02 For Basic Services Having An Undetermined
Scope — Direct Labor Costs limes a Factor
ARTICLE 4 -- PAYMENTS TO THE CONSULTANT Method of Payment
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 cost not to exceed
amount of $89,000 based upon the rate schedule, which
is attached as Appendix 1 of Exhibit C and incorporated
herein for all intents and purposes. This amount includes
all CONSULTANT'S consultant's charges, and will be
distributed at the completion of each phase in the
following amount:
a. Design Phase .................................... $70,100
b. Bidding and Construction Phases ..... $18,900
2. (Deleted)
3. The cost not to exceed includes
compensation for CONSULTANT's services and
services of CONSULTANT's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. (Deleted)
5. The portion of the amount billed for
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 once a month
for all of the services performed during the
applicable month.
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 A2.01 or A2.02 of Exhibit A of the
Agreement, except for services as a consultant or
witness under paragraph A2.01.A.13, an amount
based upon the actual hours worked and the rate
schedule, which is attached as Appendix 1 of Exhibit
C and incorporated herein for all intents and
purposes plus Reimbursable Expenses. Additional
Services shall not be performed without the prior
written consent of the OWNER.
C4.04 For Reimbursable Expenses
A. (Modified) When (Deleted) in compensation for
Basic Services under paragraph C4.01, OWNER
shall pay CONSULTANT for Reimbursable
Expenses as the rate set forth in Appendix 2 of this
Exhibit C. Before the OWNER shall be liable for
any reimbursable expenses, the CONSULTANT
must obtain prior written approval of the OWNER
of any expense that exceeds $1,000 for which the
CONSULTANT seeks reimbursement.
Reimbursable Expenses shall not exceed $
without the prior written consent of the OWNER.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project -related
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
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
(Deleted)
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and wages
paid to CONSULTANT's employees but does not
include payroll related costs or benefits.
B. (Deleted)
C4.07 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 and C4.03, will
be based on the Direct Labor Costs for the
cumulative hours charged to the Project during the
billing period by all of CONSULTANT's
employees, plus Reimbursable Expenses and
CONSULTANT's Consultant's charges, if any.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C — HOURLY RATES
Hourly Rates for Consultant Staff:
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
CLASSIFICATION
HOURLY RATES
PROFESSIONALS Principal Engineer/Scientist
$250.00
Supervisory Engineer/Scientist
$215.00
Senior Engineer/Scientist
$200.00
Engineer/Scientist 111
$160.00
Engineer/Scientist II
$140.00
Engineer/Scientist I
$120.00
Staff Engineer/Scientist
$90.00
TECHNICIANS Senior Technician
$160.00
Designer
$130.00
CADD 11
$115.00
CADD 1
$90.00
CLERICAL Project Control
$120.00
Word Processing
$90.00
General Clerical
$90.00
Pagel of 1 Pages
(Appendix 1 of Exhibit C - Hourly Rates)
APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS
Subcontracts or Outside Services: Cost plus 10%
Reproductions
In House
Mylar Plots (B/W)
$2.00/sf
Color Plots
$4.00/sf
Vellum Plots (B/W)
$1.00/sf
Bond Plots (B/W)
$0.50/sf
Drawing Reproduction
Cost plus 10%
Document Reproduction
$0.10/sheet
Outside Reproduction: Cost plus 10%
Travel (not subject to the Factor of 1.10)
Company Auto: IRS Approved Rate
Rental Vehicle: Cost
Airfare: Cost
Meals & Lodging: 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
Initial:
OWNER
CONSULTANT
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
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
c. Waiver of subrogation required.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
b. Waiver of subrogation required.
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $1,000,000
Waiver of Subrogation required
Page 1 of 2 Pages
(Exhibit G - Insurance)
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 EDIT K, consisting of 2 pages, referred to in and part of
the Agreement between OWNER and CONSULTANT for
Professional Services dated
Initial:
OWNER
CONSULTANT
Indemnification
CONSULTANT AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMILESS 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 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 TERNIINATION
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.