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Ordinance No. 1,427 ORDINANCE NO. 1427 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO A CONTRACT WITH TRAFFIC ENGINEERS, INC. FOR DESIGN SERVICES RELATED TO THE SIGNALIZATION OF DECKER DRIVE AND STERLING STREET INTERSECTION IN THE CITY OF BAYTOWN, TEXAS, AND PROVIDING FOR THE EFFECTIVE DATE HEREOF. 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 Mayor and City Clerk of the City of Baytown to execute and attest to a contract with Traffic Engineers , Inc. for design services related to the signalization of Decker Drive and Sterling Street intersection in the City of Baytown, Texas. A copy of the contract is marked Exhibit "A" , attached hereto and made a part hereof for all intents and purposes . Section 2: This ordinance shall take effect from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this 12th day of July 1973. TOM GENTRY, Mayor ATTEST: EDNA OLIVER, City Clerk By: BELINDA BINGHAM, DeputyOCity Clerk APPROVED: I/ a NEEL R HARDSON, City Attorney EXHIBIT "A" t This document has important legal consequences; consultation with an attorney is encouraged with respect to its completion or modification. . STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES ° Issued by PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A practice section of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS 1 © 1970, NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS 2029 K STREET,N.W.,WASHINGTON, D. C. 20006 NSPE 1910.1 (1970 Edition) 2nd Printing November 1970 7M ' I TABLE OF CONTENTS Page No. IDENTIFICATION OF THE PARTIES AND GENERAL DESCRIPTION OF THE PROJECT ............................................ 1 SECTION 1—CONCEPT DEVELOPMENT AND PROGaAM REPORT ...... 1 SECTION 2—BASIC SERVICES OF THE ENGINEER .................................... 2 2.1. General .. 2 2.2. Schematic Planning Phase ........................................................ 2 2.3. Preliminary Design Phase ............ 2.4. Final Design Phase .................................................................. 2 2.5. Bidding or Negotiating Phase ................................................ 2 2.6. Construction Phase .................................................................. 2 SECTION 3—ADDITIONAL SERVICES OF THE ENGINEER ...................... 3 3.1. General .......................................................•-•.......................... 3 3.2. Resident Services During Construction .................................. 4 SECTION 4—THE OWNER'S RESPONSIBILITIES .......................................... 4 SECTION 5—PERIOD OF SERVICE ..................................•---............................ 5 SECTION 6—PAYMENTS TO THE ENGINEER .............................................. 6 6.1. Methods of Payments for Services and Expenses ofthe Engineer ........................................................................ 6 6.2. Times of Payment ..............................•--•-----•--•......................... 6 6.3. General ...-•.................................................••---......................... 7 SECTION 7---GENERAL CONSIDERATIONS .................................................. 8 7.1. Termination ...................................•-•--.................................•••.. 8 7.2. Ownership of Documents ........................................................ 8 7.3. Estimates .................................................................................. 8 7.4. Arbitration ................................................................................ 8 7.5. Insurance ...........................................•---................................... 8 7.6. Successors and Assigns ............................................................ 9 SECTION 8—SPECIAL PROVISIONS ................................................................ 9 This document has important legal consequences; consultation with an attorney is encouraged with respect to its completion or modification. STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT made as of 28th ....................... day of June in the year Nineteen Hundred and ........ EVenty-three............................................................................ by and between City of Baytown, Texas ................................................................................................................................................. ........................................................................................................................................... (hereinafter called the OWNER) and Traffic Engineers, Inc. ...................................................................................................................................... .......-•-....................--.--...............................-- .........................................................................................•---••--•.......'.................................. (hereinafter called the ENGINEER) WITNESSETH, that whereas the OWNER intends to .........employ the Engineer to design the ....................................................... traffic .sig...............................................................l tlon at the intersection of Decker Drive and .................................. .....................................................:........... ...........Sterling Street. - ...................................................................................................................................................... ........................•---...................--•---..................----.............-----....................................................-----•--.........--•---.............................---... .......................................................................................................................................................................................................... ................................................................................................................................................... (hereinafter called the Project). NOW THEREFORE, the OWNER and the ENGINEER in consideration of their mutual covenants herein agree in respect of the performance of professional engineering services by the ENGINEER and the payment for those services by the OWNER, as set forth below. The ENGINEER will serve as the OWNER's professional engineering representative in those phases of the Project to which this Agreement applies, and will give consultation and advice to the OWNER during the performance of his services. SECTION 1—CONCEPT DEVELOPMENT AND PRO- OWNER's representative in connection *ith any such GRAM REPORT services. 1.3. Provide special analysis of the OWNER's needs, After written authorization to proceed, the ENGINEER planning surveys, site evaluations and comparative studies will: of prospective sites and solutions. 1.1. Consult with the OWNER to determine the 1.4. Provide general economic analysis of the OWNER's OWNER's requirements for the Project. requirements applicable to various alternatives. 1.2. Advise the OWNER as to the necessity of his pro- I.S. Prepare a Program Report with findings and recom- viding or obtaining services or data from others of the mendations for the Project and furnish five copies of types described in paragraph 4.3, and act as the the same to the OWNER. Page 1 of ... 0. pages SECTION 2-13ASIC SERVICES OF THE ENGINEER scope of the work to be performed by contractors on the Project (hereinafter called the "Drawings"), and instruc- tions to bidders, general conditions, special conditions and 2.1. General. technical provisions (all of which are hereinafter called the "Specifications"). 2.1.1. The ENGINEER will perform professional design 14.2. Furnish to the OWNER such documents and de- services irk connection with the Project as hereinafter stated which shall include normal civil, structural, me- sign data as may be required for, and assist in the prepara- ehanical and electrical engineering services and normal lion of, the required documents so that the OWNER may architectural design services incidental thereto. secure approval of such governmental authorities as have jurisdiction over design criteria applicable to the Project. 2.2. Schematic Planning Phase. 2.4.3. Advise the OWNER of any adjustment of the After.µTitten authorization to proceed with the Schematic cost estimate for the Project caused by changes in scope, Planning Phase the'ENGINEER will: design requirements or construction costs and furnish a revised cost estimate for the Project based on the final 2.2.1. Review with the OWNER his requirements for Drawings and Specifications. the Project. 2.4.4. Prepare proposal forms and notice to bidders and 2.2.2. Advise the OWNER as to the necessity of his assist in the preparation of the Contract Documents. providing or obtaining from others any additional serv- ices or data of the types described in paragraph 4.3, and 2.4.5. Furnish five copies of the final Drawings and act as the OWNER's representative in connection with any Specifications. such services. 2.2.3. On the basis of the OWNER's requirements and 2.5. Bidding or Negotiating Phase. the data obtained as a result of the services provided in After written authorization to proceed with the Bidding accordance with paragraphs 1.2, 1.3, and 2.2.2, prepare or Negotiating Phase, the ENGINEER will: schematic planning documents indicating clearly the con- siderations involved and the alternate solutions available 2.5.1. Assist the OWNER in obtaining and evaluating to the OWNER; the schematic design shall include bids or negotiating proposals and preparing construction schematic layouts, sketches and preliminary design cri- contracts. teria, and set forth the ENGINEER's recommendations 2.5.2. Consult with and advise the OWNER as to the and establish the scope of the Project. acceptability of subcontractors and other persons and 2.2.4. Prepare a preliminary cost estimate for the Project. organizations proposed by the prime construction con- tractors) (hereinafter called "Contractor(s)") for those 2.2.5. Furnish two copies of the above schematic docu- portions of the work as to which such acceptability is ments and estimate. required by the bidding documents. 2.3. Preliminary Design Phase. 2.5.3. This Phase shall terminate upon commencement After written authorization to proceed with the Pre- of the Construction Phase or upon cessation of negotia- liminary Design Phase, the ENGINEER will: lions with Contractor(s) (except as may otherwise be re- quired to complete the services called for in paragraph 2.3.1. On the basis of the approved schematic.docu- 7.3.2.5). meats prepare preliminary design documents consisting of final design criteria, preliminary drawings and outline 2.6. Construction Phase. specifications. The Construction Phase will commence with the execu- 2.3.2. Prepare a revised preliminary cost estimate for tion of the first of the prime construction contract(s) to the Project based on the information contained in the be executed (or on such other date as may be specified preliminary design documents. by the OWNER for commencement of the work under any construction contract) and will terminate upon writ- 2.3.3. Furnish two copies of the above preliminary de- ten approval of final payment by the ENGINEER to all sign documents and revised estimate. of the Contractor(s). During the Construction Phase the 2.4. Final Design Phase. ENGINEER will: After written authorization to proceed with the Final 2.6.1. Consult with and advise the OWNER and act as Design Phase the ENGINEER will: his representative as provided in Articles I through 42, inclusive, of the Standard General Conditions of the Con- 2.4.1. On the basis of the approved preliminary design struction Contract, National Society of Professional En- documents prepare for incorporation in the Contract gineers document #1910-8, 1970 edition: the extent and Documents. detailed drawings to show the character and limitations of the duties, responsibilities and authority of Page 2 of .10... pages the ENGINEER as assigned in said Standard General amounts; such approvals of payment shall constitute a Conditions shall not be modified without the ENGINEHR's representation to the OWNER, based on such observations written consent; all of the OWNER's instructions to the and review, that the work has progressed to the point Contractor(s) shalt be issued through the ENGINEER indicated and that, to the best of his knowledge, infor- who shall have authority to act on behalf of the OWNER mation and belief, the quality of the work is in accordance to the extent provided in said Standard General Cendi- with the Contract Documents (subject to an evaluation tions except as otherwise provided in writing. of the work as a functioning Project upon Substantial Completion, to the results of any subsequent tests called 2.6.2. Make periodic visits to the site to observe the for in the Contract Documents, to minor deviations from progress and quality of the executed work and to deter- the Contract Documents correctable prior to completion mine in general if the work is proceeding in accordance and to any qualifications stated in his approval), but by with the Contract Documents; he will not be required approving an application for payment the ENGINEER to make exhaustive or continuous on-site inspections to shall not be deemed to have represented that he has check the quality or quantity of work; he will not be made any examination to determine how or for what pur- responsible for the construction means, methods, tech- poses any Contractor has used the moneys paid on ac- niques, sequences or procedures or the safety precautions count of the Contract Price. and programs incident thereto; his efforts will be directed ® toward providing assurance for the OWNER that the 2.6.6. Conduct an inspection to determine if the Project completed Project will conform to the requirements of is substantially complete and a final inspection to determine the Contract Documents, but he will not be responsible if the Project has been completed in accordance with the for the failure of Contractor(s) to perform the construe- Contract Documents and if each Contractor has fulfilled tion work in accordance with the Contract Documents; all of his obligations thereunder so that the ENGINEER and during such visits and on the basis of his on-site may approve, in writing, final payment to each Con- observations as an experienced and qualified design pro- tractor. fessional, he will keep the OWNER informed of the progress of the work, will endeavor to guard the OWNER 2.6.7. The ENGINEER will not be responsible for the against defects and deficiencies in the work of Con- acts or omissions of any Contractor, any subcontractor or tractor(s) and may disapprove or reject work as failing any of the Contractor(s)' or subcontractors' agents or em- to conform to the Contract Documents. ployees or any other person performing any of the work under the construction contract. 2.6.3. Review and approve shop drawings, diagrams, illustrations, brochures, catalog data, schedules and sam- ples, the results of tests and inspections and other data SECTION 3—ADDITIONAL SERVICES OF THE which any Contractor is required to submit, but only for ENGINEER conformance with the design concept of the Project and compliance with the information given in the Contract Documents; and receive and review maintenance and operating instructions, schedules, guarantees, bonds and 3.1. General. certificates of inspection which are to be assembled by the Contractor(s) in accordance with the Contract Docu- ments. will furnish or obtain from others Additional Services of the following types which are not considered normal or 2.6.4. Issue all instructions of the OWNER to the Con- customary Basic Services. these will be paid for by the tractor(s); prepare routine change orders as required; he OWNER as indicated in Section 6. may, as the OWNER's representative, require special in- spection or testing of the work; he will act as interpreter 3.1.1. Preparation of applications and supporting docu- of the terms and conditions of the Contract Documents menu for governmental grants, loans or advances in con- and judge of the performance thereunder b the nection with public works projects. I 8 P y parties thereto and will make decisions on all claims of the 3.1.2. Services'to mike measured drawings of or to in- OWNER and the Contractor(s) relating to the execution vestigate existing conditions or facilities, or to verify the and progress of the work and all other matters and ques- accuracy of drawings or other information furnished by tions related thereto; but the ENGINEER will not be the OWNER. liable for the results of any such interpretations or deci- sions rendered by him in good faith. 3.1.3. Additional services resulting from significant changes in general scope of the Project or its design in- 2.6.5. Based on his on-site observations as an experi eluding, but not limited to, phanges in size, complexity, enced and qualified design professional and•on his review OWNER's schedule, or character of construction. of Contractor(s)' applications for payment and supporting data, determine the amount owing to the Contractor(s) and 3.1.4. Providing renderings or models for-the OIVNER's approve in writing payment to the Contractor(s) in such use. Page 3 Of JQ... pages i 3.1.5. Revising previously approved studies, reports, 3.1.15. Services or consultation after completion of the design documents, Drawings or Specifications, when such Construction Phase, such as frequent inspections during revisions arc due to causes beyond the control of the any guarantee period and reporting observed discrepancies ENGINEER. under guarantees called for in any construction contract. 3.1.6. Preparing documents for alternate bids requested 3.1.16. Preparing to serve or serving as a witness for by the OWNER for work which is not executed or docu- the OWW'NL'R in any litigation or other proceeding involy- ments for out-of-sequence work. ing the Project. 3.1.7. Investigations involving detailed consideration of 3.1.17. Additional services in connection with the Pro. operations, maintenance and overhead expenses; and the ject. including services normally furnished by the OWNER preparation of rate schedules, earnings and expense state- and services not otherwise provided for in this Agreement. ments, feasibility studies; appraisals and valuations; de- tailed quantity surveys of material, equipment and labor; 3.2. Resident Sen•Eces During Construction. and audits or inventories required in connection with construction performed by the OWNER. 3.2.1. If requested by the OWNER or recommended by 3.1.8. Furnishing the services of special consultants for the ENGINEER and approved in writing by the other, aResident Project Representative and assistants will be other than the normal civil, structural, mechanical and furnished and will act as directed by the ENGINEER engineering and normal architectural design in- in order to provide more extensive representation at the eidental thereto, such as consultants for interior design, Project site during the Construction Phase. Such services selection of furniture and furnishings, communications, will be paid for by the OWNER as indicated in paragraph acoustics, kitchens and landscaping. 6.1.3.4. 3.1.9. Additional services resulting from the Project in- 3.2.2. The du volving more than one prime construction contract, or ties and responsibilities and the limitations •�-. separate construction contracts fcr different building on the authority of the Resident Project Representative trades, or separate equipment contracts; provided that and assistants shall be set forth in Exhibit A which is to additional compensation for such services is not provided be identified, attached to and made a part of this Agree- under paragraphs 6.1.2.2 or 6.1.2.4. men( before such services begin. 3.1.10. Services in connection with change orders to 3.2.3. Through more extensive on-site observations of the reflect changes requested by the OWNER if the resulting work in progress and field checks of materials and equip- change in compensation for Basic Services is not com- ment by the Resident Project Representative (if furnished) mensurate with the additional services rendered. and assistants, the ENGINEER will endeavor to provide further protection for the OWNER against defects and 3.1.11. Services necessitated by out-of-town travel re- deficiencies in the work, but the furnishing of such resi- quired of the ENGINEER other than visits to the dent project representation shall not make the ENGINEER Project site as required by Section 2. responsible for construction means, methods, techniques, ° sequences or procedures or for safety precautions or pro- 3.1.12. Preparing for the OWNER, on request, a set grams, or for the Contractor(s)' failure to perform the of reproducible record prints of Drawings showing those construction work in accordance with the Contract Docu- changes made during the construction process, based on ments. the marked-up prints, Drawings and other data furnished by the Contractors to the ENGINEER and which the ENGINEER considers significant. SECTION 4—THE OWNER'S RESPONSIBILITIES 3.1.13. Additional or extended services during construc- tion made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of de- The OWNER will: fective or neglected work of any Contractor, (3) prolon- 4.1. Provide full information as to his requirements for gation of the construction contract time of any prime the Project. construction contract by more than sixty days, (4) accele- ration of the work schedule involving services beyond 4.2. Assist the ENGINEER by placing at his disposal normal working hours, and (5) default by the Contractor all available infermation pertinent to the Project includ- under any prime construction contract, ing previous reports and any other data relative to design 3.1.14. Preparation of operating and maintenance man- and construction of the Project. uals; extensive assistance in the utilization of any equip- 4.3. Furnish the ENGINEER services or data as re- ment or system (sttch as initial start-tip, testing, adjusting quired by paragraphs 1.2 and 2.2.2, such as core borings, and balancing); and training personnel for operation and probings and subsurface explorations, hydrographic sur- maintenance. veys, laboratory tests and inspections otsartrles, materials I Page 4 of .1 Q... pages l and equipment; appropriate professional interpretations of 5.2. The services called for in the Schematic Planning all of the foregoing; property, boundary, easement, right Phase shall be completed and the schematic plan docu- of way, topographic and utility surveys; zoning „nd deed merits and estimate submitted within ....5..... calendar restriction; and other special data or consultations not days following; the authorization to proceed with that phase covered in paragraph 3.1; all of which the ENGINEER of services. may rely upon in performing his services under this Agreement. 5.3. After acceptance by the OWNER of the schematic documents and estimate, indicating any specific modifica- 4.4. Guarantee access to and make all provision, for the tions or changes in scope desired by the OWNER. and ENGINEER to enter upon public and private property upon written authorization from the OWNER, the ENGI- as required for the ENGINEER to perform his services NEER will proceed with the.performance of the services under this Agreement. called for in the Preliminary Design Phase, and will sub- mit preliminary design documents and a revised estimate 4.5. Examine all studies, reports, sketches, estimates, within ...10_.... calendar days following the authorization Specifications, Drawings, proposals and other documents to proceed with that phase of services. presented by the ENGINEER and render in writing decisions pertaining thereto within a reasonable time so 5.4. After acceptance by the OWNER of the preliminary as not to delay the services of the ENGINEER. design documents and revised estimate, indicating any specific modifications or changes in scope desired by the 4.6. Pay for all costs incident to obtaining bids or pro- OWNER, and upon written authorization from the posals from contractors. OWNER, the ENGINEER will proceed with the perform- ance of the services called for in the Final Design Phase, 4.7. Provide such legal, accounting and insurance .coun- so as to deliver final Drawings, Specifications and a re- vised estimate for all authorized work on the Project such auditing service as the OWNER may require to within ...1.0----- calendar days after the authorization to ascertain how or for what purpose any Contractor has proceed with that phase of services. used the moneys paid to him under the construction contract. 5.5. The ENGINEER's services under the Schematic Planning Phase, Preliminary Design Phase and Final De- 4.8. Designate in writing a person to act as OWNER's sign Phase .shall each be considered complete at the representative with respect to the work to be performed earlier of (1) the date when the submissions for that under this Agreement; and such person shall have com- phase have been accepted by the OWNER or (2) thirty plete authority to transmit instructions, receive informa- days after the date when such submissions are delivered tion, interpret and define OWNER's policies and decisions to the OWNER for final approval. with respect to materials, equipment, elements and sys- tems pertinent to the services covered by this Agreement. 5.6. Unless this Agreement has been terminated as pro- vided in paragraph 7.1, the ENGINEER will be obli- 4.9. Give prompt written notice to the ENGINEER gated to render services hereunder for a period which may whenever the OWNER observes or otherwise becomes reasonably be required for the design, award of contracts aware of any defect in the Project. and construction of the Project including extra work and 4.10. Furnish approvals and permits from all any required extension thereto. The ENGINEER may pp p govern• decline to render further services hereunder if the OWNER ^ mental authorities having jurisdiction over the Project and fails to give prompt written authorization to proceed with such approvals and consents from others as may be neces- the Schematic Planning, PreliminaryDesign, Final Design sary for completion of the Project. or Bidding or Negotiating Phase after completion of the 4.11. Furnish, or direct the ENGINEER to provide, immediate!y preceding phase, or if the Construction necessary Additional Services as stipulated in Section 3 Phase has not commenced within ...XX.... calendar days of this Agreement or other services as required. (plus such additional time as may be required to com- plete the services called for under paragraph 7.3.2.5) after 4.12. Bear all costs incident to compliance with the re- completion of the Final Design Phase. quirements of this Section 4. 5.7. If the OWNER has requested sigeificant modifica- tions or changes in the scope of the Project, the time SECTION 5—PERIOD OF SERVICE of performance under paragraphs 5.2, 5.3 and 5.4 shall be adjusted appropriately. 5.8. If the design or construction of the Project is de- 5.1. The services called for in the Concept Development layed significantly for reasons (including costs of construc- and Program Report Phase shall be completed and the tion) beyond the ENGINEER's control, the various rates Program Report submitted within -----55..... calendar days of compensation provided for elsewhere in this Agree- following the authorization to proceed. ment shall be subject to renegotiation. Page 5 of Q... pages SECTION 6—PAYMENTS TO THE ENGINEER Project at regularly established offices of the ENGI- NEER plus all reimbursable expenses. 6.1. Methods of Payment for Services and Expenses of 6.1.3.2. Sm, ial Consultants. The OWNER will pay the ENGINEER. the ENGINEER for services of special consultants 6.1.1. Concept Development and Program Report. The covered by paragraph 3.1.8, the amount billed to the OWNER will pay the ENGINEER for the Concept De- ENGINEER therefor times a factor of .JJ9.... plus velopment and Program Report services rendered under all of the ENGINEER's reimbursable expenses in con- Section 1 an amount based on the payroll costs ti:aes a ncction therewith. factor of .............. for services rendered by principal's and 6.1.3.3. Serving as a IVitness. The OWNER will pay employees assigned to the Project at regularly establ►shct' the ENGINtER for the services of the principals and offices of the ENGINEER plus all reimbursable expenses. employees as witnesses in accordance with paragraph 6.1.2. Basic Services. The OWNER will pay the ENGI- 3.1.16 at the rate of ....$1.5.Q............................................ NEER for Basic Services rendered under Section 2 on ........................................................................................... one of the following bases (except as otherwise provided per day or any portion thereof plus all reimbursable in paragraph 6.1.2.6): expenses. M AAkx AAM kJotin A kx4kVk*AkkXRW*A<q":k W 6.1.3.4. Resident Project Services. The OWNER �N�X4(�Ck14UPR�) C4L9Q1Qb(>(4tt3(X7CSt9i1t3F7(f(XDC }1K6�X�141�7C will pay the ENGINEER for resident services during construction furnished under paragraph 3.2.1 on the flE7EX7( (XXXX?(XXXXXX basis of payroll costs times a factor of 2 5 for services rendered by principals and employees assigned AA XXb XXY,X5tKfAXXb(XftXRK)i%,xxixX;k%)m349:�Cxm to field offices in connection with resident Project N*A)OXXX,IUKX"CPt16RXXXXXXXvtxA,X OIV.)4'l4=M representation plus all reimbursable expenses. Xdfrft?tdLM�(XXA4WKDtAXNdC1, xXXXXXXXXXXX 6.1.4. Reimbursable Expenses. The OWNER will pay h �� the ENGINEER the actual costs of all reimbursable ex- Q. 6.1.2.3. Percentage. If the Project is awarded on penes incurred as provided in paragraphs 6.1_1, 6.1.2.5, 2 the basis of one prime construction contract ...LQ...... 6.1.2.6 and 6.1.3. percent of the Project construction cost. >4K 6.1.5. As used in this paragraph 6.1. the terms "project construction cost", "payroll costs" and "reimbursable a ��Qx .l(XX '+?f�KbXX?((Xt�IKCXx?(J( s (X�(XC expenses" shall have the meanings assigned to them in Q. X6KMXSUli3AU&XXKMXXXXXXXX x.xxlyr)) ➢C aXL4 paragraphs 6.3.1. 6.3.4 and 6.3.5. � �4XeYtXXXXXXX)<SKrXKd4X?fpCXp(dCX�2fyZ¢,BtXX�lrltlti•X48t1'd4�C d �44X 6.2. Times of Payment. Q14K 6.2.1. The OWNER will make prompt monthly pay- )O*RXX(RIXXgbt* 4XX72hRMX9(XbIOCXOtXXgMXR)MXX ments in response to the ENGINEER's monthly detailed )bX90XXAQ gMIK44XWXXq!XXt)t)FXXq(DtKXX)D(XXXXXX-XX statements for all categories of services rendered under f9RXX9CXiX9CXRX74XXX'klt4�R7�Xkrit�f�XRtR1Rk"�XXo1�X this Agreement and for reimbursable expenses incurred. XDpt04�CX4(XbQXXA4DtXYlK)07i2Ct3(sYCX3tD(hdD4X9f)CRItRXid�C 6.2.2. Upon authorization to proceed with the Schematic Xl'ld(Z��6tDi �i{�?SXjGICX4(Dt1�X05XDOKX'X?(�QD6Dh�( Plan Phase, a primary payment of S....None........... shall or be made as the minimum payment for Basic Services and 6.1.2.6. Other Method. (To be used in case one of this amount shall be credited to the final payment to be the above methods of compensation is not applicable.) made for Basic Services performed under this Agreement. (Refer to and attach.schedule when applicable) 6.2.3. In the case of payments for Basit; Services on the basis of a lump sum or a percentage of construction cost under paragraphs 6.1.2.1 through 6.1.2.4, inclusive, upon 6.1.3. Additional Services. The OWNER will pay the conclusion of each phase of Basic Services, compensation ENGINEER for Additional Services rendered under Sec- for all phases of Basic Services rendered shall amount to tion 3 as follows: the following percentages of the total compensation pay- 6.1.3.1. General. For Additional Services rendered able for all phases of Basic Services: under paragraphs 3.1.1 through 3.1.17. inclusive (except (1) Schematic Planning Phase 15% services covered by paragraph 3.1.8 and services as a (2) Preliminary Design Phase 35% witness under paragraph 3.1.16), on the basis of pay- (3) Final Design Phase 75% roll costs times a factor of ....Z.5..... for services (4) Bidding or Negotiating Phase 80% rendered by principals and employees assigned to the (5) Construction Phase - 100% Page 6 of ---1.0.. pages 1 6.2.4. Payments for Basic Services in accordance with penses of transportation and subsistence of principals, paragraph 6.1.2.6 shall be made as follows: employees and consultants for the normal civil, structural. (Refer to and attach schedule«•hen applicable) mechanical and electrical engineering services and the normal architectural services incidental thereto when traveling in connection with the Project; expenses inci- 6.3. General. dental to obtaining bids or proposals from contractors; expenses of furnishing and maintaining field office facili- 6.3.1. Project construction cost when used as a basis for ties; subsistence and transportation of Resident Project payment shall be based on one of the following sources Representatives and their assistants; toil telephone calls with precedence in the order listed: and telegrams; reproduction of reports, Drawings and 6.3.1.1. For completed construction the total cost of Specifications, and similar Project-related items in addi- all work performed as designed or specified by the tion to those required under Sections 1 and 2; expense of ENGINEER. computer time including an appropriate charge for pre- viously established programs; and, if authorized in ad- 6.3.1.2. For work not constructed, the lowest bona vane by the OWNER, expense of overtime work requir- fide bid received from a qualified bidder for such work; ing higher than regular rates. or if the work is not bid, the lowest bona fide negotiated 6.3.6. If the OIVNER fails to make any payment due proposal for such work. the ENGINEER on account of his services and expenses ( 6.3.1.3. For work for which no such bid or proposal within sixty days after receipt of the ENGINEER's bill is received, the ENGINEER's most recent cost estimate therefor, the amounts due the ENGINEER shall bear for the Project. Labor furnished by the OWNER for interest at the legal rate in force at the principal place of the Project shall be included in the construction cost business of the ENGINEER from said sixtieth day, and at current market rates including a reasonable allowance in addition the ENGINEER may, after giving seven days' for overhead and profit. Materials and equipment fur- written notice to the OWNER, suspend services under nished by the OWNER shall be included at current this Agreement until he has been paid in full all amounts market prices except that used materials and equipment due him on account of his services and expenses. shall be included as if purchased new for the Project. 6.3.7. If this Agreement is terminated upon the comple- 6.3.2. Such Project construction cost shall be the total tion of the ENGINEER's services under Section 1, or at cost of the Project to the OWNER, but it shall not in- the completion of any phase of the Basic Services called elude the ENGINEER's compensation, the cost of the for under Section 2, progress payments to be made to land, rights-of-way, or compensation for and/or damages the ENGINEER on account of services rendered shall to properties unless this Agreement so specifies, nor shall constitute total payment for services rendered. If this it include the OWNER's legal, accounting, insurance Agreement is terminated during any phase of the Basic counseling, or auditing services or interest charges in- Services when the ENGINEER is being compensated on curred in connection with the Project. the basis of a lump sum or a percentage of construction cost, the ENGINEER shall be paid for services rendered 6.3.3. No deduction shall be made from the ENGI- on the basis of his reasonable estimate of the portion of NEER's compensation on account of penalty, liquidated such phase completed prior to termination. If this Agree- damages, or other amounts withheld from payments to the ment is terminated during services under Section 1 or Contractor(s). during any phase of Basic Services when the ENGINEER is being compensated on the basis of payroll times a 6.3.4. The payroll costs used as a basis for payment factor, the ENGINEER shall be paid for services rendered shall mean the salaries and wages paid to principals and to the date of termination. In the event of any termina- employees engaged directly on the Project, including, but tion, the ENGINEER will be paid for all his reasonable not limited to, engineers, architects, surveymen, designers, expenses resulting from such termination, and for any dra°tsmen, specification writers, estimators, other technical unpaid reimbursable expenses. Any primary payment personnel, stenographers, typists and clerks; plus the cost made under paragraph 6.2.2 shall bb credited to any of fringe benefits including, but not limited to, social terminal payment due the ENGINEER. security contributions, unemployment, excise and payroll taxes, workmen's compensation, health and retirement 6.3.8. If, prior to termination of this Agreement, any benefits, bonuses, sick leave, vacation and holiday pay work designed or specified by the ENGINEER under applicable thereto. For the purposes of this Agreement, Section 1 or during any phase of the Basic Services is the principals of the ENGINEER and their hourly salary suspended in whole or in part for more than three rates are: months or is abandoned, after written notice front the .Engirzeer...n.19...................Ae.sAgr1..-..$6................. OWNER, the ENGINEER shall be paid for services per- Qr .f t.i.ng_.-_ g4.................. Secretary__..-...$.3.50.. formed prior to receipt of such notice from the OWNER as provided in paragraph 6.3.7 for termination during any 6.3.5. Reimbursable expenses shall mean the actual ex- phase of his services. Page 7 of ....]4. pages i SECTION 7--GENERAL CONSIDERATIONS adjustments in the 'scope of the Project to bring it within the cost limit. 7.3.2.4. If the Construction Phase has not commenced 7.1. Termination. within six months of the completion of the Final Design This Agreement may be terminated by either parry by Phase, the established Project construction cost limit in seven days' written notice in the event of substantial this Agreemcrit shall not be effective or binding on the failure to perform in accordance with the terms hereof ENGINEER, and the OWNER will consent to an ad- by the other party through no fault of the terminating justment in such cost limit commensurate with any party. If this Agreement is so terminated. the ENGINEER change in the general level of prices in the construction shall be paid as provided in paragraph 6.3.7. industry between the date of completion of the Final Design Phase and the date on which proposals or bids 7.2. Ownership of Documents. arc sought. All documents, including original drawings, estimates, 7.3.2.5. If the lowest bona fide proposal or bid exceeds specifications, field notes and data are and remain the the established Project construction cost limit, the property of the ENGINEER as instruments of service. OWNER will (1) give written approval to increase such The OWNER may at his expense obtain a set of repro- cost limit, ('_) authorize negotiating or rebidding the ducible record prints of drawings and copies of other Project within a reasonable time, or (3) cooperate in documents, in consideration of which the OWNER will revising the Project scope. In the case of (3), the EN- use them solely in connection with the Project, and not GINEER will, without additional charge, modify the for the purpose of making subsequent extensions or en- Drawings and'Specifications as necessary to bring the largemcnts thereto and he will not sell, publish or display Project construction cost within the cost limit. The pro- them publicly. Re-use for extensions of the Project, or viding of such service shall be the limit of the ENGI- for new projects, shall require written permission of the NEER's responsibility in this regard and having done ENGINEER and shall entitle him to further compensa- so, the ENGINEER shall be entitled to payment for tion at a rate to be agreed upon by OWNER and ENGI- his services in accordance with this Agreement. NEER. 7.4. Arbitration. 7.3. Estimates' 7.4.1. All claims, disputes and other matters'in question 7.3.1. Since the ENGINEER has no control over the arising out of, or relating to, this Agreement or the cost of labor, materials or equipment, or over the Con- breach thereof shall be decided by arbitration in accord- tractor(s)' methods of determining prices, or over competi- ance with the Construction Industry Arbitration Rules tive bidding or market conditions, his estimates of cost of the American Arbitration Association then obtaining. for the Project provided for herein are to be made on This agreement so to arbitrate shall be specifically en- the basis of his expterience and qualifications and represent forceable under the prevailing arbitration law. his best judgment as a design professional familiar with 7.4.2. Notice of the demand for arbitration shall be the construction industry, but the ENGINEER cannot filed in writing with the other party to this Agreement and does not guarantee that proposals, bids or the Project and with the American Arbitration Association. The de- construction cost will not vary from cost estimates pre- mand shall be made within a reasonable time after the pared by him. claim, dispute or other matter in question has arisen. In 7.3.2. If, as a condition to this Agreement, a Project no event shall the demand for arbitration be made after construction cost limit is established, the following shall the time when institution of legal or equitable proceedings apply: based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. 7.3.2.1. The approval by the ON'�'N ER at any time during the Basic Services of a revised cost estimate in 7.4.3. The award rendered by the arbitrators shall be excess of the then established cost limit, shall constitute final, and judgment may be entered upon it in any court a corresponding increase in the Project construction having jurisdiction thereof. cost limit. 7.5. Insurance. 7.3.2.2. Any Project construction cost limit established by this Agreement shall include a bidding contingency The ENGINEER will secure and maintain such insurance of ten percent unless another amount is agreed upon as will protect him from claims under workmen's com- in writing. pensation acts, claims for damages because of bodily injury including personal injury, sickness or disease, or 7.3.2.3. The ENGINEER shall be permitted to dc- death of any of his employees or of any person other terntine what materials, equipment, component systems than his employees, and from claims for damages be- and types of construction are to be included in the cause of injun. to or destruction of tangible property Drawings and Specifications and to make reasonable including loss of use resulting therefrom. Page 8 Of ...1.0_, pages . 7.6. Successors and Assigns. ENGINEER will assign, sublet or transfer his interest in The OWNER and the ENGINEER each binds himself this Agreement without the written consent of the other. and his partners, successors, executors. administrators and Nothing herein shall be construed as creating any per- assigns to the other party of this Agreement and to the sonal liability on the part of any officer or agent of any partners, successors, executors, administrators and assigns public body which may be a party hereto, nor shall it of such other party, in respect to all covenants of this be construed as giving any rights or benefits hereunder Agreement; except as above, neither the OWNER nor the to anyone other than the OWNER and the ENGINEER. SECTION 8—SPECIAL PROVISIONS The OWNER and the ENGINEER agree that this Agreement shall be subject to the following special provisions which together with the provisions hereof and the exhibits and schedules hereto represent the entire Agreement between the OWNER and the ENGINEER; they may only be altered, amended or repealed by a duty executed written instrument. 8.1. J Page 9 of ...IQ-- pages ' ` i IN %VITNESS wmr-REOF the parties hereto have made and executed this A;rcement as of the day and year first above written. OWNER: ENGINEER: ................................................................................................ .... .........:............ .Mayar.................................................................................... President ............................................ ... � �....�..........�ly �.... ................... -� ' . ATTEST. .City...Clerk........................ ................................................................................................ --------..............---....................................................................... a J Page ._IA... of ...IQ- pages t' Ft his document has important legal consequences; consultation with an attorney is encouraged with respect o its completion or modification. STANDARD FORM OF AGREEMENT BET -WEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES s • Issued by PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A practice section of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS O 1970,NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS 2029 K STREET,N.W.,WASHINGTON,D. C. 20006 NSPE 19104 (1970 Edition) 2nd Printing November 1970 7M TABLE OF CONTENTS Page No. IDENTIFICATION OF THE PARTIES AND GENERAL DESCRIPTION OF THE PROJECT ............................................ 1 SECTION 1-CONCEPT DEVELOPMENT AND PROGRAM REPORT ------ 1 SECTION 2-BASIC SERVICES OF THE ENGINEER .................................... 2 2.1. General ------------------------------------------------------------ --------------- 2 2.2. Schematic Planning Phase -------------------------------------------------------- 2 2.3. Preliminary Design Phase --------------------------------------- ----------------- 2.4. Final Design Phase ------------------------------------------------------------------ 2 2.5. Bidding or Negotiating Phase ------------------------------------------------ 2 2.6. Construction Phase ------------------------------------------------------------------ 2 SECTION 3-ADDITIONAL SERVICES OF THE ENGINEER ---------------------- 3 3.1. General ------------------------------------------------------------------------------------ 3 3.2. Resident Services During Construction .................................. 4 SECTION 4--THE OWNER'S RESPONSIBILITIES .......................................... 4 SECTION 5-PERIOD OF SERVICE ------------------------------------------------------------------ 5 SECTION 6-PAYMENTS TO THE ENGINEER ---------------------------------------------- 6 6.1. Methods of Payments for Services and Expenses ofthe Engineer ------------------------------------------------------------------------ 6 6.2. Times of Payment -------------------------------------------------------------------- 6 6.3. General --------------------------------------------------------- ----------. 7 SECTION 7-GENERAL CONSIDERATIONS -------------------------------------------------- 8 7.1. Termination ------------------------------------------------------------------------------ 8 7.2. Ownership of Documents -------------------------------------------------------- 8 7.3. Estimates ---------------------------------------------------------------------------------- 8 7.4. Arbitration -------------------------------------------------------------------------------- 8 7.5. Insurance ---------------------------------------------------------------------------------- 8 7.6. Successors and Assigns ------------------------------------------------------------ 9 SECTION 8—SPECIAL PROVISIONS ---------------------------------------------------------------- 9 4 t This document has important legal consequences; consultation with an attorney is encouraged with respect to its completion or modification. STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT made as of Z8 t h................................................ day of ...........June........................... in the year Nineteen Hundred and .......seventy. -------- --three------------------------------------------____________ ____ -----.------------------------ by and between ____C i ty____of__Bay-town,___Texa s ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- (hereinafter called the OWNER) and Traffic Engineers, Inc. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------------------------------------------- (hereinafter called the ENGINEER) R WITNESSETH, that whereas the OWNER intends to ..........empl-oy the Engineer to design the --.................................................................... ___traff i c s ignal____i_nstal l ati on at the intersection of Decker Drive and Sterling Street. .-------------------------------------------------------------------------- -----. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------ ---------------------------------------------------------------------------------------------------------------------------------------------------- (hereinafter called the Project). NOW THEREFORE, the OWNER and the ENGINEER in consideration of their mutual covenants herein agree in respect of the performance of professional engineering services by the ENGINEER and the payment for those services by the OWNER, as set forth below. The ENGINEER will serve as the OWNER's professional engineering representative in those phases of the Project to which this Agreement applies, and will give consultation and advice to the OWNER during the performance of his services. SECTION 1-CONCEPT DEVELOPMENT AND PRO- OWNER's representative in connection with any such GRAM REPORT services. 1.3. Provide special analysis of the OWNER's needs, After written authorization to proceed, the ENGINEER planning surveys, site evaluations and comparative studies will: of prospective sites and solutions. 1.1. Consult with the OWNER to determine the 1.4. Provide general economic analysis of the OWNER's OWNER's requirements for the Project. requirements applicable to various alternatives. 1.2. Advise the OWNER as to the necessity of his pro- 1.5. Prepare a Program Report with findings and recom- viding or obtaining services or data from others of the mendations for the Project and furnish five copies of types described in paragraph 4.3, and act as the the same to the OWNER. Page 1 of -_-1 - pages SECTION 2-BASIC SERVICES OF THE ENGINEER scope of the work to be performed by contractors on the Project (hereinafter called the "Drawings"), and instruc- tions to bidders, general conditions, special conditions and technical provisions (all of which are hereinafter called 2.1. General. the "Specifications"). 2.1.1. The ENGINEER will perform professional design 2.4.2. Furnish to the OWNER such documents and de- services in connection; with the, Project as hereinafter sign data as may be required for, and assist in the prepara- stated which shall include normal civil, structural, me- tion of, the required documents so that the OWNER may chanical and electrical engineering services and normal secure approval of such governmental authorities as have architectural design services incidental thereto. jurisdiction over design criteria applicable to the Project. 2.2. Schematic Planning Phase. 2.4.3. Advise the OWNER of any adjustment of the After written authorization to proceed with the Schematic cost estimate for the Project caused by changes in scope, Planning Phase the ENGINEER will: design requirements or construction costs and furnish a revised cost estimate for the Project based on the final 2.2.1. Review with the OWNER his requirements for Drawings and Specifications. the Project. 2.4.4. Prepare proposal forms and notice to bidders and 2.2.2. Advise the OWNER as to the necessity of his assist in the preparation of the Contract Documents. providing or obtaining from others any additional serv- ices or data of the types described in paragraph 4.3, and 2.4.5. Furnish five copies of the final Drawings and act as the OWNER's representative in connection with any Specifications. such services. 2.5. Bidding or Negotiating Phase. 2.2.3. On the basis of the OWNER's requirements and the data obtained as a result of the services provided in After written authorization to proceed with the Bidding accordance with paragraphs 1.2, 1.3, and 2.2.2, prepare or Negotiating Phase, the ENGINEER will: schematic planning documents indicating clearly the con- siderations involved and the alternate solutions available 2.5.1. Assist the OWNER in obtaining and evaluating bids or negotiating proposals and preparing construction to the OWNER; the schematic design shall include schematic layouts, sketches and preliminary design cri- contracts. teria, and set forth the ENGINEER's recommendations 2.5.2. Consult with and advise the OWNER as to the and establish the scope of the Project. acceptability of subcontractors and other persons and 2.2.4. Prepare a preliminary cost estimate for the Project. organizations proposed by the prime construction con- tractors) (hereinafter called "Contractor(s)") for those 2.2.5. Furnish two copies of the above schematic docu- portions of the work as to which such acceptability is ments and estimate. required by the bidding documents. 2.3. Preliminary Design Phase. 2.5.3. This Phase shall terminate upon commencement of the Construction Phase or upon cessation of negotia- A.fter written authorization to proceed with the Pre- tions with Contractor(s) (except as may otherwise be re- quired to complete the services called for in paragraph 2.3.1. On the basis of they approved schematic docu- 7.3.2.5). ments prepare preliminary design documents consisting of final design criteria, preliminary drawings and outline 2.6. Construction Phase. specifications. The Construction Phase will commence with the execu- 2.3.2. Prepare a revised preliminary cost estimate for tion of the first of the prime construction contract(s) to the Project based on the information contained in the be executed (or on such other date as may be specified preliminary design documents. by the OWNER for commencement of the work under any construction contract) and will terminate upon writ- 2.3.3. Furnish two copies of the above preliminary de- ten approval of final payment by the ENGINEER to all sign documents and revised estimate. of the Contractor(s). During the Construction Phase the ENGINEER will: 2.4. Final Design Phase. After written authorization to proceed with the Final 2.6.1. Consult with and advise the OWNER and act as Design Phase the ENGINEER will: his representative as provided in Articles 1 through 42, g inclusive, of the Standard General Conditions of the Con- 2.4.1. On the basis of the approved preliminary design struction Contract, National Society of Professional En- documents prepare for incorporation in the Contract gineers document #1910-85 1970 edition; the extent and Documents, detailed drawings to show the character and limitations of the duties, responsibilities and authority of Page 2 of JQ--- pages e Q the ENGINEER as assigned in said Standard General amounts; such approvals of payment shall constitute a Conditions shall not be modified without the ENGINEER's representation to the OWNER, based on such observations written consent; all of the OWNER's instructions to the and review, that the work has progressed to the point Contractor(s) shall be issued through the ENGINEER indicated and that, to the best of his knowledge, infor- who shall have authority to act on behalf of the OWNER mation and belief, the quality of the work is in accordance to the extent provided in said Standard General Condi- with the Contract Documents (subject to an evaluation tions except as otherwise provided in writing. of the work as a functioning Project upon Substantial Completion, to the results of any subsequent tests called 2.6.2. Make periodic visits to the site to observe the for in the Contract Documents, to minor deviations from progress and quality of the executed work and to deter- the Contract Documents correctable prior to completion mine in general if the work is proceeding in accordance and to any qualifications stated in his approval), but by with the Contract Documents; he will not be required approving an application for payment the ENGINEER to make exhaustive or continuous on-site inspections to shall not be deemed to have represented that he has check the quality or quantity of work; he will not be made any examination to determine how or for what ur- responsible for the construction means, methods, tech- P poses any Contractor has used the moneys paid on ac- niques, sequences or procedures or the safety precautions count of the Contract Price. and programs incident thereto; his efforts will be directed toward providing assurance for the OWNER that the 2.6.6. Conduct an inspection to determine if the Project completed Project will conform to the requirements of is substantially complete and a final inspection to determine the Contract Documents, but he will not be responsible if the Project has been completed in accordance with the for the failure of Contractor(s) to perform the construc- Contract Documents and if each Contractor has fulfilled tion work in accordance with the Contract Documents; all of his obligations thereunder so that the ENGINEER and during such visits and on the basis of his on-site may approve, in writing, final payment to each Con- observations as an experienced and qualified design pro- tractor. fessional, he will keep the OWNER informed of the progress of the work, will endeavor to guard the OWNER 2.6.7• The ENGINEER will not be responsible for the against defects and deficiencies in the work of Con- acts or omissions of any Contractor, any subcontractor or tractor(s) and may disapprove or reject work as failing any of the Contractor(s)' or subcontractors' agents or em- to conform to the Contract Documents. ployees or any other person performing any of the work under the construction contract. 2.6.3. Review and approve shop drawings, diagrams, illustrations, brochures, catalog data, schedules and sam- ples, the results of tests and inspections and other data SECTION 3-ADDITIONAL SERVICES OF THE which any Contractor is required to submit, but only for ENGINEER conformance with the design concept of the Project and compliance with the information given in the Contract Documents; and receive and review maintenance and operating instructions, schedules, guarantees, bonds and 3.1. General. certificates of inspection which are to be assembled by If the Contractor(s) in accordance with the Contract Docu- ments. will furnish or obtain from others Additional Services of the following types which are not considered normal or 2.6.4. Issue all instructions of the OWNER to the Con- customary Basic Services; these will be paid for by the tractor(s); prepare routine change orders as required; he OWNER as indicated in Section 6. may, as the OWNER's representative, require special in- spection or testing of the work; he will act as interpreter 3.1.1. Preparation of applications and supporting docu- of the terms and conditions of the Contract Documents ments for governmental grants, loans or advances in con- and judge of the performance thereunder by the parties nection with public works projects. thereto and will make decisions on all claims of the 3.1.2. Services to make measured drawings of or to in- OWNER and the Contractor(s) relating to the execution g vestigate existing conditions or facilities, or to verify the and progress of the work and all other matters and ques- accuracy of drawings or other information furnished b tions related thereto; but the ENGINEER will not be y the OWNER. liable for the results of any such interpretations or deci- sions rendered by him in good faith. 3.1.3. Additional services resulting from significant changes in general scope of the Project or its design in- 2.6.5. Based on his on-site observations as an experi-� cluding, but not limited to, changes in size, com lexit enced and qualified design professional and on his review �s schedule p y' of Contractor(s)' applications for payment and supporting OWNER ' or character of construction. data, determine the amount owing to the Contractor(s) and 3.1.4. Providing renderings or models for the OWNER's approve in writing payment to the Contractor(s) in such use. Page 3 of JQ_ --- pages 3.1.5. Revising previously approved studies, reports, 3.1.15. Services or consultation after completion of the design documents, Drawings or Specifications, when such Construction Phase, such as frequent inspections during revisions are due to causes beyond the control of the any guarantee period and reporting observed discrepancies ENGINEER. under guarantees called for in any construction contract. 3.1.6. Preparing documents for alternate bids requested 3.1.16. Preparing to serve or serving as a witness for by the OWNER for work which is not executed or docu- the OWNER in any litigation or other proceeding involy- ments for out-of-sequence work. ing the Project. 3.1.7. Investigations involving detailed consideration of 3.1.17. Additional services in connection with the Pro- operations, maintenance and overhead expenses; and the ject, including services normally furnished by the OWNER preparation of rate schedules, earnings and expense state- and services not otherwise provided for in this Agreement. ments, feasibility studies; appraisals and valuations; de- tailed quantity surveys of material, equipment and labor; 3.2. Resident Services During Construction. and audits or inventories required in connection with construction performed by the OWNER. 3.2.1. If requested by the OWNER or recommended by the ENGINEER and approved in writing by the other, a 3.1.8. Furnishing the services of special consultants for Resident Project Representative and assistants will be other than the normal civil, structural, mechanical and furnished and will act as directed by the ENGINEER electrical engineering and normal architectural design in- in order to provide more extensive representation at the cidental thereto, such as consultants for interior design, project site during the Construction Phase. Such services selection of furniture and furnishings, communications, will be paid for by the OWNER as indicated in paragraph acoustics, kitchens and landscaping. 6.1.3.4. 3.1.9. Additional services resulting from the Project in- 3.2.2. The duties and responsibilities and the limitations volving more than one prime construction contract, or on the authority of the Resident Project Representative separate construction contracts for different building and assistants shall be set forth in Exhibit A which is to trades, or separate equipment contracts; provided that be identified, attached to and made a part of this Agree- additional compensation for such services is not provided ment before such services begin. under paragraphs 6.1.2.2 or 6.1.2.4. with change orders to 3.2.3. Through more extensive on-site observations of the 3.1.10. Services in connection g reflect changes requested by the OWNER if the resulting work in progress and field checks of materials and equip- change for Basic Services is not com- ment by the Resident Project Representative (if furnished) change in compensation and assistants, the ENGINEER will endeavor to provide mensurate with the additional services rendered. further protection for the OWNER against defects and 3.1.11. Services necessitated by out-of-town travel re- deficiencies in the work, but the furnishing of such resi- quired of the ENGINEER other than visits to the dent project representation shall not make the ENGINEER Project site as required by Section 2. responsible for construction means, methods, techniques, sequences or procedures or for safety precautions or pro- 3.1.12. Preparing for the OWNER, on request, a set grams, or for the Contractor(s)' failure to perform the of reproducible record prints of Drawings showing those construction work in accordance with the Contract Docu- changes made during the construction process, based on ments. the marked-up prints, Drawings and other data furnished by the Contractors to the ENGINEER and which the ENGINEER considers significant. SECTION 4-THE OWNER'S RESPONSIBILITIES 3.1.13. Additional or extended services during construc- tion made necessary by (1) work damaged by fire or other The OWNER will: cause during construction, (2) a significant amount of de- fective or neglected work of any Contractor, (3) prolon- 4.1. Provide full information as to his requirements for gation of the construction contract time of any prime the Project. construction contract by more than sixty days, (4) accele- ration of the work schedule involving services beyond 4.2. Assist the ENGINEER by placing at his disposal normal working hours, and (5) default by the Contractor all available information pertinent to the Project includ- under any prime construction contract. ing previous reports and any other data relative to design and construction of the Project. 3.1.14. Preparation of operating and maintenance man- uals; extensive assistance in the utilization of any equip- 4.3. Furnish the ENGINEER services or data as re- ment ors stem (such as initial start-up, testing, adjusting uired bparagraphs 1.2 and 2.2.2, such as core borings, y p� g, J g q Y g and balancing); and training personnel for operation and probings and subsurface explorations, hydrographic sur- maintenance. veys, laboratory tests and inspections of samples, materials Page 4 of _IQ--- pages a_ and equipment; appropriate professional interpretations of 5.2. The services called for in the Schematic Planning all of the foregoing; property, boundary, easement, right Phase shall be completed and the schematic plan docu- of way, topographic and utility surveys; zoning and deed ments and estimate submitted within .....5___.. calendar restriction; and other special data or consultations not days following the authorization to proceed with that phase covered in paragraph 3.1; all of which the ENGINEER of services. may rely upon. in performing his services under this Agreement. 5.3. After acceptance by the OWNER of the schematic documents and estimate, indicating any specific modifica- 4.4. Guarantee access to and make all provisions for the tions or changes in scope desired by the OWNER, and ENGINEER to enter upon public and private property upon written authorization from the OWNER, the ENGI- as required for the ENGINEER to perform his services NEER will proceed with the performance of the services under this Agreement. called for in the Preliminary Design Phase, and will sub- mit preliminary design documents and a revised estimate .5. Examine all studies, reports, sketches, estimates, within ---1D_.... calendar days following the authorization Specifications, Drawings, proposals and other documents to proceed with that phase of services. presented by the ENGINEER and render in writing decisions pertaining thereto within a reasonable time so 5.4. After acceptance by the OWNER of the preliminary as not to delay the services of the ENGINEER. design documents and revised estimate, indicating any specific modifications or changes in scope desired by the 4.6. Pay for all costs incident to obtaining bids or pro- OWNER, and upon written authorization from the posals from contractors. OWNER, the ENGINEER will proceed with the perform- ance of the services called for in the Final Design Phase, 4.7. Provide such legal, accounting and insurance coun- so as to deliver final Drawings, Specifications and a re- such services as may be required for the Project, and vised estimate for all authorized work on the Project such auditing service as the OWNER may require to within ___1_0..... calendar days after the authorization to ascertain how or for what purpose any Contractor has proceed with that phase of services. used the moneys paid to him under the construction contract. 5.5. The ENGINEER's services under the Schematic Planning Phase, Preliminary Design Phase and Final De- 4.8. Designate in writing a person to act as OWNER's sign Phase .shall each be considered complete at the representative with respect to the work to be performed earlier of (1) the date when the submissions for that under this Agreement; and such person shall have com- phase have been accepted by the OWNER or (2) thirty plete authority to transmit instructions, receive informa- days after the date when such submissions are delivered tion, interpret and define OWNER's policies and decisions to the OWNER for final approval. with respect to materials, equipment, elements and sys- tems pertinent to the services covered by this Agreement. 5.6. Unless this Agreement has been terminated as pro- vided in paragraph 7.1, the ENGINEER will be obli- 4.9. Give prompt written notice to the ENGINEER gated to render services hereunder for a period which may . whenever the OWNER observes or otherwise becomes reasonably be required for the design, award of contracts aware of any defect in the Project. and construction of the Project including extra work-and 4.10. Furnish approvals and permits from all govern- any required extension thereto. The ENGINEER may mental authorities having jurisdiction over the Project and decline to render further services hereunder if the OWNER such approvals and consents from others as may be neces- fails to give prompt written authorization to proceed with the Schematic Planning, Preliminary Design, Final sary for completion of the Project. Y gnu Design or Bidding or Negotiating Phase after completion of the 4.11. Furnish, or direct the ENGINEER to provide, immediately preceding phase, or if the Construction necessary Additional Services as stipulated in Section 3 Phase has not commenced within ___XX..__ calendar days of this Agreement or other services as required. (plus such additional time as may be required to com- plete the services called for under paragraph 7.3.2.5) after 4.12. Bear all costs incident to compliance with the re- completion of the Final Design Phase. quirements of this Section 4. 5.7. If the OWNER has requested significant modifica- tions or changes in the scope of the Project, the time SECTION 5-PERIOD OF SERVICE of performance under paragraphs 5.2, 5.3 and 5.4 shall be adjusted appropriately. 5.8. If the design or construction of the Project is de- 5.1. The services called for in the Concept Development layed significantly for reasons (including costs of construc- and Program Report Phase shall be completed and the tion) beyond the ENGINEER's control, the various rates Program Report submitted within ____5-___.. calendar days of compensation provided for elsewhere in this Agree- following the authorization to proceed. ment shall be subject to renegotiation. Page 5 of _J.0---- pages SECTION 6-PAYMENTS TO THE ENGINEER Project at regularly established offices of the ENGI- NEER plus all reimbursable expenses. 6.1. Methods of Payment for Services and Expenses of 6.1.3.2. Special Consultants. The OWNER will pay the ENGINEER. the ENGINEER for services of special consultants 6.1.1. Concept Development and Program Report. The covered by paragraph 3.1.8, the amount billed to the ENGINEER therefor times a factor of __�_0�0__.. plus OWNER will pay the ENGINEER for the Concept De- all of the ENGINEER's reimbursable expenses in con- Section and Program Report services rendered under Section 1 an amount based on the payroll costs times a nection therewith. factor of ______________ for services rendered by principals and 6.1.3.3. Serving as a Witness. The OWNER will pay employees assigned to the Project at regularly established the ENGINEER for the services of the principals and offices of the ENGINEER plus all reimbursable expenses. employees as witnesses in accordance with paragraph will a the ENGI- 3.1.16 at the rate of $1-5-0 6.1.2. Basic Services. The OWNER pay ---- -------------------------------------------- NEER for Basic Services rendered under Section 2 on ................................................................................"---.-----" one of the following bases (except as otherwise provided per day or any portion thereof plus all reimbursable in paragraph 6.1.2.6): expenses. A- Ak-XX£XM§WXXXA X1kXkAkkAM518&?,r;k R* 6.1.3.4. Resident Project Services. The OWNER will pay the ENGINEER for resident services during construction furnished under paragraph 3.2.1 on the X9tXXXX)EXXXX)EXX basis of costs times a factor of payroll ---2-.5...... for NY services rendered by principals and employees assigned AX)O(XXX XXXJ XXIKXftXJ?P(i9MXiAX*X 9*)MX to field offices in connection with resident Project X*X NXIUKM1f+X"XXXXXXXX)WRX(CX )t)Aob C representation plus all reimbursable expenses. X""YsjX)A=W M XXa C hIC)$2C XXX XX Xx XXX 6.1.4. Reimbursable Expenses. The OWNER will pay the ENGINEER the actual costs of all reimbursable ex- a 6.1.2.3. Percentage. If the Project is awarded on penses incurred as provided in paragraphs 6.1.1, 6.1.2.5, the basis of one prime construction contract ---7.,.Q------ 6.1.2.6 and 6.1.3. percent of the Project construction cost. =y 6.1.5. As used in this paragraph 6.1, the terms "project AK construction cost", "payroll costs" and "reimbursable X�CXX -� �CXX �4� � C�f►�jC� expenses" shall have the meanings assigned to them in a XXUXXXrX AXNXX XXXXXXXXX*1fW*XJ&MAX6M paragraphs 6.3.1, 6.3.4 and 6.3.5. X 6.2. Times of Payment. o 6.2.1. The OWNER will make prompt monthly pay- Q � �CJCX�9�4X�t�X�4�CX�� X�CX�C9�9�CX��9CXX�P7�X�C ments in response to the ENGINEER'S monthly detailed XSeAxmftxp(*XodjCXXs(x,v)mx)@X xxxc)(X-XXXX)xx statements for all categories of services rendered under this Agreement and for reimbursable expenses incurred. XXX�X �X� XX � X 6.2.2. Upon authorization to proceed with the Schematic Plan Phase, a primary payment of N_Q__ne._..._-.--- shall or be made as the minimum payment for Basic Services and 6.1.2.6. Other Method. (To be used in case one of this amount shall be credited to the final payment to be the above methods of compensation is not applicable.) made for Basic Services performed under this Agreement. (Refer to and attach schedule when applicable) 6.2.3. In the case of payments for Basic Services on the basis of a lump sum or a percentage of construction cost under paragraphs 6.1.2.1 through 6.1.2.4, inclusive, upon 6.1.3. Additional Services. The OWNER will pay the conclusion of each phase of Basic Services, compensation ENGINEER for Additional Services rendered under Sec- for all phases of Basic Services rendered shall amount to tion 3 as follows: the following percentages of the total compensation pay- 6.1.3.1. Genet-al. For Additional Services rendered able for all phases of Basic Services: under paragraphs 3.1.1 through 3.1.17, inclusive (except (1) Schematic Planning Phase 15% services covered by paragraph 3.1.8 and services as a (2) Preliminary Design Phase 35% witness under paragraph 3.1.16), on the basis of pay- (3) Final Design Phase 75% roll costs times a factor of ---- �_---. for services (4) Bidding or Negotiating Phase 80% rendered by principals and employees assigned to the (5) Construction Phase 100% Page 6 of -_-]-0-- pages f 6.2.4. Payments for Basic Services in accordance with penses of transportation and subsistence of principals, paragraph 6.1.2.6 shall be made as follows: employees and consultants for the normal civil, .structural, (Refer to and attach schedule when applicable) mechanical and electrical engineering services and the normal architectural services incidental thereto when traveling in connection with the Project; expenses inci- 6.3. General. dental to obtaining bids or proposals from contractors; expenses of furnishing and maintaining field office facili-. 6.3.1. Project construction cost when used as a basis for ties; subsistence and transportation of Resident Project payment shall be based on one of the following sources Representatives and their assistants; toll telephone calls with precedence in the order listed: and telegrams; reproduction of reports, Drawings and 6.3.1.1. For completed construction the total cost of Specifications, and similar Project-related items in addi- all work performed as designed or specified by the tion to those required under Sections 1 and 2; expense of ENGINEER. computer time including an appropriate charge for pre- viously established programs; and, if authorized in ad 6.3.1.2. For work not constructed, the lowest bona vance by the OWNER, expense of overtime work requir- fide bid received from a qualified bidder for such work; ing higher than regular rates. or if the work is not bid, the lowest bona fide negotiated 6.3.6. If the OWNER fails to make an payment due proposal for such work. y p y the ENGINEER on account of his services and expenses 6.3.1.3. For work for which no such bid or proposal within sixty days after receipt of the ENGINEER's bill is received, the ENGINEER's most recent cost estimate therefor, the amounts due the ENGINEER shall bear for the Project. Labor furnished by the OWNER for interest at the legal rate in force at the principal place of the Project shall be included in the construction cost business of the ENGINEER from said sixtieth day, and at current market rates including a reasonable allowance in addition the ENGINEER may, after giving seven days' for overhead and profit. Materials and equipment fur- written notice to the OWNER, suspend services under nished by the OWNER shall be included at current this Agreement until he has been paid in full all amounts market prices except that used materials and equipment due him on account of his services and expenses. shall be included as if purchased new for the Project. 6.3.7. If this Agreement is terminated upon the com le- g p p 6.3.2. Such Project construction cost shall be the total tion of the ENGINEER's services under Section 1, or at cost of the Project to the OWNER, but it shall not in- the completion of any phase of the Basic Services called clude the ENGINEER's compensation, the cost of the for under Section 2, progress payments to be made to land, rights-of-way, or compensation for and/or damages the ENGINEER on account of services rendered shall to properties unless this Agreement so specifies, nor shall constitute total payment for services rendered. If this it include the OWNER's legal, accounting, insurance Agreement is terminated during any phase of the Basic counseling, or auditing services or interest charges in- Services when the ENGINEER is being compensated on curred' in connection with the Project. the basis of a lump sum or a percentage of construction cost, the ENGINEER shall be paid for services rendered 6.3.3. No deduction shall be made from the ENGI- on the basis of his reasonable estimate of the portion of NEER's compensation on account of penalty, liquidated such phase completed prior to termination. If this Agree- damages, or other amounts withheld from payments to the ment is terminated during services under Section 1 or Contractors). during any phase of Basic Services when the ENGINEER is being compensated on the basis of payroll times a 6.3.4. The payroll costs used as a basis for payment factor, the ENGINEER shall be paid for services rendered shall mean the salaries and wages paid to principals and to the date of termination. In the event of any termina- employees engaged directly on the Project, including, but tion, the ENGINEER will be paid for all his reasonable not limited to, engineers, architects, surveymen, designers, expenses resulting from such termination, and for any draftsmen, specification writers, estimators, other technical unpaid reimbursable expenses. Any primary payment personnel, stenographers, typists and clerks; plus the cost made under paragraph 6.2.2 shall be credited to any of fringe benefits including, but not limited to, social terminal payment due the ENGINEER. security contributions, unemployment, excise and payroll taxes, workmen's compensation, health and retirement 6.3.8. If, prior to termination of this Agreement, any benefits, bonuses, sick leave, vacation and holiday pay work designed or specified by the ENGINEER under applicable thereto. For the purposes of this Agreement, Section 1 or during any phase of the Basic Services is the principals of the ENGINEER and their hourly salary suspended in whole or in part for more than three rates are: months or is abandoned, after written notice from the Ing.ineer.-__- $_9-------------------De$_I.gl'�__-... 6___------------------- OWNER, the ENGINEER shall be paid for services per- . -Drafti_n.g.- - 4 Secretary — $3.50_ formed prior to receipt of such notice from the OWNER ----- ------ as provided in paragraph 6.3.7 for termination during any 6.3.5. Reimbursable expenses shall mean the actual ex- phase of his services. Page 7 of __-_IQ pages SECTION 7-GENERAL CONSIDERATIONS adjustments in the scope of the Project to bring it within the cost limit. 7.3.2.4. If the Construction Phase has not commenced 7.1. Termination. within six months of the completion of the Final Design This Agreement may be terminated by either party by Phase, the established Project construction cost limit in seven days' written notice in the event of substantial this Agreement shall not be effective or binding on the failure to perform in accordance with the terms hereof ENGINEER, and the OWNER will consent to an ad- by the other party through no fault of the terminating justment in such cost limit commensurate with any party. If this Agreement is so terminated, the ENGINEER change in the general level of prices in the construction shall be paid as provided in paragraph 6.3.7. industry between the date of completion of the Final Design Phase and the date on which proposals or bids 7.2. Ownership of Documents. are sought. All documents, including original drawings, estimates, 7.3.2.5. If the lowest bona fide proposal or bid exceeds specifications, field notes and data are and remain the the established Project construction cost limit, the property of the ENGINEER as instruments of service. OWNER will (1) give written approval to increase such The OWNER may at his expense obtain a set of repro- cost limit, (2) authorize negotiating or rebidding the ducible record prints of drawings and copies of other Project within a reasonable time, or (3) cooperate in documents, in consideration of which the OWNER will revising the Project scope. In the case of (3), the EN- use them solely in connection with the Project, and not GINEER will, without additional charge, modify the for the purpose of making subsequent extensions or en- Drawings and Specifications as necessary to bring the largements thereto and he will not sell, publish or display Project construction cost within the cost limit. The pro- them publicly. Re-use for extensions of the Project, or viding of such service shall be the limit of the ENGI- for new projects, shall require written permission of the NEER's responsibility in this regard and having done ENGINEER and shall entitle him to further compensa- so, the ENGINEER shall be entitled to payment for tion at a rate to be agreed upon by OWNER and ENGI- his services in accordance with this Agreement. NEER. 7.4. Arbitration. 7.3. Estimates. 7.4.1. All claims, disputes and other matters in question 7.3.1. Since the ENGINEER has no control over the arising out of, or relating to, this Agreement or the cost of labor, materials or equipment, or over the Con- breach thereof shall be decided by arbitration in accord- tractor(s), methods of determining prices, or over competi- ance with the Construction Industry Arbitration Rules tive bidding or market conditions, his estimates of cost of the American Arbitration Association then obtaining. for the Project provided for herein are to be made on This agreement so to arbitrate shall be specifically en- the basis of his experience and qualifications and represent forceable under the prevailing arbitration law. his best judgment as a design professional familiar with 7.4.2. Notice of the demand for arbitration shall be the construction industry, but the ENGINEER cannot filed in writing with the other party to this Agreement and does not guarantee that proposals, bids or the Project and with the American Arbitration Association. The de- construction cost will not vary from cost estimates pre- mand shall be made within a reasonable time after the pared by him. claim, dispute or other matter in question has arisen. In 7.3.2. If, as a condition to this Agreement, a Project no event shall the demand for arbitration be made after construction cost limit is established, the following shall the time when institution of legal or equitable proceedings apply: based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. 7.3.2.1. The approval by the OWNER at any time during the Basic Services of a revised cost estimate in 7.4.3. The award rendered by the arbitrators shall be excess of the then established cost limit, shall constitute final, and judgment may be entered upon it in any court a corresponding increase in the Project construction having jurisdiction thereof. cost limit. 7.5. Insurance. 7.3.2.2. Any Project construction cost limit established The ENGINEER will secure and maintain such insurance by this Agreement shall include a bidding contingency of ten percent unless another amount is agreed upon as will protect him from claims under workmen's com- pensation acts, claims for damages because of bodily in writing. injury including personal injury, sickness or disease, or 7.3.2.3. The ENGINEER shall be permitted to de- death of any of his employees or of any person other termine what materials, equipment, component systems than his employees, and from claims for damages be- and types of construction are to be included in the cause of injury to or destruction of tangible property Drawings and Specifications and to make reasonable including loss of use resulting therefrom. Page 8 of __14__ pages 7.6. Successors and Assigns. ENGINEER will assign, sublet or transfer his interest in The OWNER and the ENGINEER each binds himself this Agreement without the written consent of the other. and his partners, successors, executors, administrators and Nothing herein shall be construed as creating any per- assigns to the other party of this Agreement and to the sonal liability on the part of any officer or agent of any partners, successors, executors, administrators and assigns public body which may be a party hereto, nor shall it of such other party, in respect to all covenants of this be construed as giving any rights or benefits hereunder Agreement; except as above, neither the OWNER nor the to anyone other than the OWNER and the ENGINEER. SECTION 8—SPECIAL PROVISIONS The OWNER and the ENGINEER agree that this Agreement shall be subject to the following special provisions which together with the provisions hereof and the exhibits and schedules hereto represent the entire Agreement between the OWNER and the ENGINEER; they may only be altered, amended or repealed by a duly executed written instrument. 8.1. Page 9 of __1Q__ pages } IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of the day and year first above written. OWNER: ENGINEER: :)�----------------- - -------­-------------- ------------------------------------ ---9--11^1 -Mayor,,---------------------------------------- -------- ------ ------President--------------------------------- --------- ---------------------- --------------� � -------------- �%'lGl-' ATTEST -City..-Clerk.................. ------------------- --------------------------- ----- ---------- ----------------------------------------- ---------------------------- --------------------•----------- ----------------------------- --------------------- ---------- --------------------------------------------------------- Page _10--- of --_1.0- pages