Ordinance No. 14,138ORDINANCE NO. 14,138
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE PROFESSIONAL SERVICES AGREEMENT WITH HR
GREEN, INC., FOR PRELIMINARY ENGINEERING SERVICES ASSOCIATED
WITH THE CDBG DISASTER RECOVERY PROGRAM, DRAINAGE SYSTEM
IMPROVEMENTS PROJECT; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED TWELVE
THOUSAND EIGHTY-SIX AND 25i100 DOLLARS ($112,086.25); 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 a Professional Services Agreement with
HR Green, Inc., for preliminary design services associated with the CDBG Disaster Recovery Program,
Drainage System Improvements Project. A copy of said agreement is attached hereto as Exhibit "A" and
incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to HR Green,
Inc., in an amount not to exceed ONE HUNDRED TWELVE THOUSAND EIGHTY-SIX AND 25 100
DOLLARS ($112,086.25) for professional services in accordance with the agreement authorized in
Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND NO/ 100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent
(25° 0)•
Section 4: This ordinance shall take effect immediately 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 u it of th ity of
Baytown this the 81h day of August, 2019.
BRANDON CAPETILL , a or
ATT
s °"° s�
L TICIA BRYSCH, City k _'�°°°° °°°'-
8
APPROVED AS TO FORM:
- o
y
NACIO RAMIREZ, SR., �Ci t torney
R:'Karen'Files•CityCouncil .Ordinances IOW -August 8HRGreenPSAPreliminaryDesign.doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the 1 day of July, 2019 ("Effective Date").
Between
City of Baytown ("OWNER")
and
HR Green, Inc. ("ENGINEER")
OWNER intends to contract with ENGINEER to provide professional engineering design and associated services for
the Main and Republic Storm Sewer Project (the "Project") for and on behalf of OWNER. The Project entails
improvements to the existing storm sewer located on Main Sheet and the existing drainage easement south of
Republic Street. The limits of the Project are expected to be on Main Street fi•orn Texas Avenue to the drainage
easement and continue along the easement to the outfall located east of SII 146. ENGINEER'S services shall
include topographic survey, utility research, geotcchnical investigation, preliminary engineering in support of the
Project.
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I of 12
TABLE OF CONTENTS Page
ARTICLE 1 - SERVICES OF ENGINEER........................................................................................................................ 3
1.01 Scope.................................................................................................................................... ....... 3
......................
ARTICLE 2 - OWNER'S RESPONSIBILITIES................................................................................................................. 3
2.01 General............................................................................................................................................................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES...................................................................................................... 3
3.01 General............................................................................................................................................................... 3
3.02 Suspension......................................................................................................................................................... 3
ARTICLE 4 - PAYMENTS TO ENGINEER...................................................................................................................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............................................. 3
4.02 Other Provisions Concerning Payments............................................................................................................ 3
ARTICLE5 - OPINIONS OF COST................................................................................................................................... 4
5.01 Opinions of Probable Construction Cost.......................................................................................................... 4
5.02 Designing to Construction Cost Limit.............................................................................................................. 4
5.03 Opinions of Total Project Costs....................................................................................................................... 4
ARTICLE 6 - GENERA I. 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
ARTICLE7 - DEFINITIONS.............................................................................................................................................. 8
7.01 Defined Terms...................:............................................................................................................................... 8
ARTICLE 8 - EXI IIBITS AND SPECIAL PROVISIONS............................................................................................... 11
8.01 Exhibits Included............................................................................................................................................. 11
8.02 Total Agreement.............................................................................................................................................. I 1
• Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. (modified) Upon issuance of a notice to proceed by
the OWNER, ENGINEER is authorized to begin Basic
Services as set forth in Exhibit A.
C. Not Used.
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and compensation
under this Agreement have been agreed to as specified herein.
ENGINEER's obligation to render services hereunder will be
for whatever period necessary for the final completion of said
services.
B. Not Used.
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. Not Used.
B. (Modified). If ENGINEER's services are suspended
by OWNER, ENGINEER may be entitled to equitable
adjustment of rates and amounts of compensation provided for
elsewhere in this Agreement to reflect, reasonable costs
incurred by ENGINEER in connection with such suspension
and reactivation and the fact that the time for performance
under this Agreement has been revised, unless such delay or
suspension is caused in whole or in part by the ENGINEER,
its officers, agents, or employees. If ENGINEER causes or
contributes to the delay or suspension, ENGINEER shall have
no right to seek additional compensation.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbrnsable Expenses. In
addition to payments provided for in paragraphs 4.0I.A and
4.013, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the patties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or email
by ENGINEER, unless otherwise agreed. ENGINEER shall
supply detailed back-up information along with each invoice
in order for the OWNER to effectively evaluate the fees and
charges. The amount billed in each invoice will be calculated
as set forth in Exhibit C. Invoices shall be received by the
OWNER not later than sixty (60) days from the date the
ENGINEER and/or its subconsultants perform the services or
incur the expense. Failure by ENGINEER to comply with the
requirements herein in a timely manner with this requirement
shall result in the ENGINEER'S invoice being denied.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and the
required backup documentation therefor, the amounts due
ENGINEER will accrue interest at the rate set forth in
Section 2251.025 of the Texas Government Code (or the
maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days' written
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
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Between Owner and Engineer for Professional Services
Page 3 of 12
services, expenses, and other related charges. However, it is
expressly understood and agreed that ENGINEER will not
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and/or withheld in
accordance with paragraph 4.02 and that ENGINEER will not
suspend services under the agreement on account of a disputed
invoice or on account of monies withheld. All payments will
be credited first to principal and then to interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination. In the event of any
termination under section 6.06, ENGINEER will be entitled to
invoice OWNER and will be paid in accordance with Exhibit
C for all services performed or furnished and all Reimbursable
Expenses incurred through the effective date of termination
provided all instruments of service have been tendered to the
OWNER..
2. Not Used.
E. (Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGTYEER's estimated total
compensation.
G. (Added) Indebtedness. If ENGINEER, at any time
during the term of this agreement, incurs a debt, as the word
is defined in section 2-662 of the Code of Ordinances of the
City of Baytown, it shall immediately notify the OWNER's
Director of Finance in writing. If the OWNER's Director of
Finance becomes aware that the ENGINEER has incurred a
debt, the OWNER's Director of Finance shall immediately
notify the ENGINEER in writing. If the ENGINEER does
not pay the debt within 30 days of either such notification,
the OWNER's Director of Finance may deduct funds in an
amount equal to the debt from any payments owed to the
ENGINEER under this Agreement, and the ENGINEER
waives any recourse therefor.
H. No Boycott Israel. ENGINEER agrees that it will
not boycott Israel during the term of this Agreement. As
used in this section, "boycott Israel" means refusing to deal
with, terminating business activities with, or otherwise
taking any action that is intended to penalize, inflict
economic harm on, or limit commercial relations specifically
with Israel, or with a person or entity doing business in
Israel or in an Israeli -controlled territory, but does not
include an action made for ordinary business purposes.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's judgment as a professional generally familiar
with the industry. However, since ENGINEER has no control
over the cost of labor, materials, equipment, or services
furnished by others, or over the Contractor's methods of
determining prices, or over competitive bidding or market
conditions, ENGINEER cannot and does not guarantee that
proposals, bids, or actual Construction Cost will not vary fiom
opinions of probable Construction Cost prepared by
ENGINEER. If OWNER wishes greater assurance as to
probable Construction Cost, OWNER shall employ an
independent cost estimator as provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. Not Used.
5.03 Opinions of Total Project Costs
A. Not Used.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINEER's profession
practicing under similar circumstances at the same time and in
the same locality.
B. (Modified) ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
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therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. ENGINEER shall correct
such deficiencies without additional compensation except to
the extent such action is directly attributable to deficiencies in
OWNER -finished information upon which ENGINEER is
authorized to rely as provided in Section 6.01.E.
C. ENGINEER shall perform or fiu dsh professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. Such
professionals shall be appropriately licensed and/or registered
to practice in the State of Texas. ENGINEER may employ
such ENGINEER's Consultants as ENGINEER deems
necessary to assist in the performance or furnishing of the
set -vices. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER -mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or finishing 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 set -vices of ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the terms of any such
requested notice or certification, and OWNER shall authorize
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested.
H. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify, guarantee or warrant
the existence of conditions whose existence ENGINEER
cannot ascertain; provided, that ENGINEER has exercised
due diligence and was not otherwise required to certify,
guarantee or warrant the existence of such conditions.
I. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility for
the means, methods, techniques, sequences, or procedures of
construction selected by Contractor, for safety precautions and
programs incident to the Contractor's work in progress, nor
for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor(s), subcontractor or
supplier, or of any of the Contractor's agents or employees or
any other persons (except ENGINT:ER'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 ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
party.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
6.03 Design without Construction Phase Services
Not Used.
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants fi-om
the Documents. The OWNER hereby releases ENGINEER
from any and all claims which the OWNER could make
arising out of or in connection with any reuse or misuse of the
documents by the OWNER. This release of claims for the
matters covered in this Paragraph 6.04.A shall be for the
benefit of the ENGINEER, its officers, and employees and
sub -consultants, as well as their successors and assigns.
B. (Modified) Copies of OWNER-fu mished data that
may be relied upon by ENGINEER are limited to the printed
copies that air. delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived fiom 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. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long-term
compatibility, usability, or readability of documents resulting
fiom the use of software application packages, operating
systems, or computer hardware differing fiom those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER fiom 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
ENGIIN'kER to fiuther compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that ENGINEER,
at OWNER's sole expense, provide additional insurance
coverage, increased limits, or revised deductibles that are
more protective than those specified in Exhibit G. If so
requested by OWNER, with the concurrence of ENGINEER,
and if commercially available, ENGINEER shall obtain and
shall require ENGINEER's Consultants to obtain such
additional insurance coverage, different limits, or revised
deductibles for such periods of time as requested by OWNER,
and Exhibit G will be supplemented to incorporate these
requirements.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 30 days'
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating party; or
b. By ENGINEER upon seven days written
notice if ENGINEER is being requested by OWNER
to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven 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 OWN ,R effective upon the
receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located. Venue for all purposes
shall be in Harris County, Texas.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.B the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due) in
this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or transfer
is mandated or restricted by law. Unless specifically stated to
the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by OWNER
or ENGINEER to any Contactor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to ENGINEER that to the best
of its knowledge a Hazardous Environmental Condition does
not exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
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Between Owner and Engineer for Professional Services
Page 7of12
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," `operator," "generator," or "transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Sitd in connection with ENGINEER's activities under this
Agreement.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
B. (Added) Notwithstanding anything to the contrary
contained in this Agreement, the OWNER and ENGINEER
hereby agree that no claim or dispute between the OWNER
and ENGINEER arising out of or relating to this Agreement
shall be decided by any arbitration proceeding including,
without limitation, any proceeding under the Federal
Arbitration Act (9 U.S.C. Sections 1-14), or any applicable
State arbitration statute, including, but not limited to, the
Texas General Arbitration Act, provided that in the event
that the OWNER is subjected to an arbitration proceeding
notwithstanding this provision, ENGINEER consents to be
joined in the arbitration proceeding if ENGINEER'S
presence is required or requested by the OWNER for
complete relief to be recorded in the arbitration proceeding.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given personally,
or by registered or certified mail postage prepaid, or by a
commercial courier service. Additionally, notices may be
given via facsimile or by electronic mail if such notice is also
given personally, or by registered or certified mail or by a
commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and ENGINEER, who
agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the
intention of the stricken provision.
6.15 Waiver
A. Non -enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
1. Addenda --Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
2. Additional Services --The services to be performed
for or fitmished to OWNER by ENGINEER in accordance
with Exhibit A, Part 2 of this Agreement.
3. Agreement --This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8 hereof.
4. Application for Payment --The form acceptable to
ENGINEER which is to be used by Contractor in requesting
progress or final payments for the completion of its Work and
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
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 au' above current action levels established by the
United States Occupational Safety and Health Administration.
6. Basic Services --The services to be performed for or
furnished to OWNER by ENGINEER in accordance with
Exhibit A, Part 1, of this Agreement.
7. Bid --The offer or proposal of tine bidder submitted
on the prescribed form setting forth the prices for the Work to
be performed.
8. Bidding Documents --The advertisement or invitation
to Bid, instructions to bidders, the Bid form and attachments,
the Bid bond, if any, the proposed Contract Documents, and
all Addenda, if any.
9. Change Order --A document recommended by
ENGINEER, which is signed by Contractor and OWNER to
authorize an addition, deletion or revision in the Work, or an
adjustment in the Contract Price or the Contract Times, issued
on or after the Effective Date of the Construction Agreement.
10. Construction Agreement --The written instrument
which is evidence of the agreement, contained in the Contract
Documents, between OWNER and Contractor covering the
Work.
11. Construction Contract --The entire and integrated
written agreement between the OWNER and Contractor
concerning the Work.
12. Construction Cost --The cost to OWNER of those
portions of the entire Project designed or specified by
ENGINEER. Construction Cost does not include costs of
services of ENGINEER or other design professionals and
consultants, cost of land, rights -of -way, or compensation for
damages to properties, or OWNER's costs for legal,
accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the
Project, or the cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement.
Construction Cost is one of the items comprising Total Project
Costs.
13. (Modified) Contract Docuuents--Documents that
establish the rights and obligations of the parties engaged in
construction and include the Construction Agreement between
OWNER and Contractor and all documents referenced
therein, Addenda (which pertain to the Contract Documents),
Contractor's Bid (including documentation accompanying the
Bid and any post -Bid documentation submitted prior to the
notice of award) when attached as an exhibit to the
Construction Agreement, the notice to proceed, the bonds,
appropriate certifications, insurance documents the General
Conditions, the Supplementary Conditions, the Specifications
and the Drawings as the same are more specifically identified
in the Construction Agreement, together with all Written
Amendments, Change Orders, Work Change Directives, Field
Orders, and ENGINEER's written interpretations and
clarifications issued on or after the Effective Date of the
Construction Agreement. Approved Shop Drawings and the
reports and drawings of subsurface and physical conditions
are not Contract Documents.
14. Contract Price --The 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 ENGINFsER's written
recommendation of final payment.
16. Contractor --An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period --The time after Final Completion
during which Contractor must correct, at no cost to OWNER,
any Defective Work, normally one year after the date of Final
Completion or such longer period of time as may be
prescribed by Laws or Regulations or by the terms of any
applicable special guarantee or specific provision of the
Contract Documents.
18. Defective --An adjective which, when modifying the
word Work, refers to Work that is unsatisfactory, faulty, or
deficient, in that it does not conform to the Contract
Documents, or does not meet the requirements of any
inspection, reference standard, test, or approval referred to in
the Contract Documents, or has been damaged prior to
ENGINEER's recommendation of final payment.
19. Documents --Data, reports, Drawings, Specifications,
Record Drawings, and other deliverables, whether in printed
or electronic media €ormat, provided or furnished in
appropriate phases by ENGINEER to OWNER pursuant to
this Agreement.
20. Drawings --That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
performed by Contractor. Shop Drawings are not Drawings as
so defined.
21. Effective Date of the Conshruction Agreement --The
date indicated in the Construction Agreement on which it
becomes effective, but if no such date is indicated, it means
the date on which the Construction Agreement is signed and
delivered by the last of the two parties to sign and deliver.
22. Effective Date of the Agreement --The date indicated
in this Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the
Agreement is signed and delivered by the last of die two
parties to sign and deliver.
23. ENGINEER's Consultants --Individuals or entities
having a contract with ENGINEER to fiunish services with
respect to this Project as ENGINEER's independent
professional associates, consultants, subcontractors, or
vendors. The term ENGINEER includes ENGINEER's
Consultants.
24. Field Order ---A written order issued by ENGINEER
which directs minor changes in the Work but which does not
involve a change in the Contract Price or the Contract Times.
25. Final Completion shall mean that all work has been
completed, all final punch list items have been inspected and
satisfactorily completed, all payments to subcontractors have
been made, all documentation and warranties have been
submitted, all closeout documents have been executed and
approved by the OWNER, and the Project has been finally
accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and procedures
that govern the Work to be performed or furnished by
Contractor with respect to the Project.
27. Hazardous Environmental Condition --The presence
at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste,
or Radioactive Materials in such quantities or circumstances
that may present a substantial danger to persons or property
exposed thereto in connection with the Work.
28. Hazardous Waste --The term Hazardous Waste shall
have the meaning provided in Section 1004 of the Solid Waste
Disposal Act (42 USC Section 6903) as amended from time to
time.
29. Laws and Regulations; Laws or• Regulations --Any
and all applicable laws, Hiles, regulations, ordinances, codes,
standards, and orders of any and all governmental bodies,
agencies, authorities, and courts having jurisdiction.
30. PCB's--Polychlorinated biphenyls.
31. Peh-olerrrn--Petroleum, including crude oil or any
fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute), such as oil, petroleum, fuel
oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed
with other non -Hazardous Waste and crude oils.
32. Radioactive Materials --Source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of
1954 (42 USC Section 2011 et seq.) as amended from time to
time.
33. Record Drawings --The Drawings as issued for
construction on which the ENGINEER, upon completion of
the Work, has shown changes due to Addenda or Change
Orders and other information which ENGINEER considers
significant based on record documents fiunished by
Contractor to ENGINEER and which were annotated by
Contractor to show changes made during construction.
34. Reimbursable Expenses —The expenses incurred
directly by ENGINEER in connection with the performing or
furnishing of Basic and Additional Services for the Project for
which OWNER shall pay ENGINEER as indicated in Exhibit
C.
35. Resident Project Representative --The authorized
representative of ENGINEER, if any, assigned to assist
ENGINEER at the Site during the Construction Phase. The
Resident Project Representative will be ENGINEER's agent
or employee and under ENGINEER's supervision. As used
herein, the tern Resident Project Representative includes any
assistants of Resident Project Representative agreed to by
OWNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
36. Samples --Physical examples of materials, equipment,
or workmanship that are representative of some portion of the
Work and which establish the standards by which such portion
of the Work will be judged.
37. Shop Drawings --All drawings, diagrams,
illustrations, schedules, and other data or information which
are specifically prepared or assembled by or for Contractor
and submitted by Contractor to ENGINEER to illustrate some
portion of the Work.
38. Site --Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which the
Work is to be performed, rights -of -way and easements for
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
39. Specifications --That part of the Contract Documents
consisting of written technical descriptions of materials,
equipment, systems, standards, and workmanship as applied to
the Work and certain administative details applicable thereto.
40. Substantial Completion --The time at which the Work
(or a specified part thereof) has progressed to the point where,
in the opinion of ENGINEER, the Work (or a specified part
thereof) is sufficiently complete, in accordance with the
Contract Documents, so that the Work (or a specified part
thereof) can be utilized for the purposes for which it is
intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work
refer to Substantial Completion thereof.
41. Supplennenntaty Conditions --That part of the Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) Total Project Costs --The sun of die
Construction Cost, allowances for contingencit;s, the total
costs of services of ENGINEER or other design professionals
and consultants, cost of land, rights -of -way, compensation for
damages to properties, OWNER's costs for legal, accounting,
insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project, and
the cost of other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement.
43. Wok --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. Wok Change Directive --A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing or
unforeseen subsurface or physical conditions under which the
Work is to be performed or to emergencies. A Work Change
Directive will not change the Contract Price or the Contract
Times but is evidence that the parties expect that the change
directed or documented by a Work Change Directive will be
incorporated in a subsequently issued Change Order following
negotiations by the parties as to its effect, if any, on the
Contract Price or Contract Times.
45. Written 4inendrnent-4 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-teclmical
rather than strictly construction -related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
nine (9) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to ENGINEER for Services
and Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, "Notice of Acceptability of Work," is not
used.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
Exhibit I, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages I to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I I 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 I., Davis
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02.A)
Name: Frank Simoneaux, P.E.
Title: Director of Public Works/Engineering
Phone Number: (281) 420-5312
Facsimile Number: (281) 420 6586
E-Mail Address: fi•ank.simoneauxng.ba, own.org
ENGINEER: HR GREEN INC..
Signature: --•�
Printed Name: A1ICh+ACt_ J. �,44,CIF_
Title: V/LF — �i�F_ SI�IE~Nr
Date Signed:. . ly -, _
Address for giving notices:
l 101 Richmond Avenue, Suite 200
Houston, Texas 77042
Designated Representative (paragraph 6.02.A):
Name: Nathan Seshadri, P.E.
Title: Project Manager
Phone Number: (713) 338-8034
Facsimile Number: (713) 956-0044
F-Mail Address: nseshadri@lit-prcen.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
I his is EXHIBIT A, consisting of 6 pages, referred to in and
part of the Agreement behveenn OW Ell and ENGINEER
for Professional Services dated 31
Initial:
OWNER
ENGINEER
Services
Article I of the Agreement is amended and supplemented to include the terms and conditions attached hereto as
Appendix A-1 as well as following agreement of the partirs. Should there be a conflict between the terms and
conditions in Appendix A-1 and this Agreement, the more shingent shall control. ENGINEER shall provide Basic and
Additional Services as set forth below.
PART I -- BASIC SERVICES (Modified)
A1.01 Prelimir►aiyEngineerbrgPhase
A. ENGINEER shall:
1. (Modified) Consult with OWNER to define and clarify OWNER's requirements for the Project and to
gather operational information on the existing facilities.
2. (Modified) Advise OWNF,R as to the necessity of OWNER's providing data or services of the types
described in Exhibit B, which are not part of ENGINEER's Basic Services, and assist OWNER in
obtaining such data and services. Develop a data needs list for- submittal to Owner.
3. (Modified) Identify, consult with, and analyze requirements of OWNER and all other governmental
authorities having jurisdiction to issue permit or to approve the portions of the Project designed or
specified by ENGINEER.
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER to receive input into OWNER'S requirements for the
Project and evaluation of potential solutions available to OWNER and to discuss and finalize design
criteria and acquire pertinent information regarding the Project.
6. (Modified) Perform or provide the following additional Preliminary Design Phase tasks or deliverables:
a. Coordination, including, but not limited to, coordination and documentation of requirements for
GLO, private utilities.
b. Data collection, review, and evaluation of existing conditions data provided by the OWNER (as-
builts, GIS and TV Inspection repo►ts), if any;
c. field meetings OWNER to discuss existing and proposed conditions,
d. hydrology and hydraulic (H&H) analysis for existing and proposed conditions to verify the extent
and identify possible solutions to flooding, which analysis shall include the following:
(1) Delineate the drainage sub -areas within the project limits
(2) Determine the peak flows from the sub areas to the existing drainage ditches
(3) Determine the capacity of the existing storm system
(4) Determine the accumulated drainage area and total flows at the downstream outfall points
(5) Prepare exhibits for overall drainage area map, sub area maps and other information
Page I of 9 Pages
(EXHIBIT A - Scope of Work)
(6) Submit a hydrology and hydraulic report with the results and findings of study
(7) Present the project segments which require improvements to OWNER for review
Development of proposed storm sewer improvements, project alternates and the construction cost
estimate for proposed improvements.
Preparation of a topographic suuvey and a geotechnical investigation
(1) The topographic survey shall include:
➢ Main Street from Texas Avenue to the existing easement and continue on the easement
up to the existing storm outfall located east of SH 146 and
➢ two blocks of Republic Avenue from Main Street to 200 feet east ofS. Third Sheet, S. First
Street and S. Second Street from Republic Avenue to the easement due to anticipated
drainage improvements.
The exact extent of the survey will be determined based on the storm improvements and
alignments reconunended in the preliminary engineering memorandum. The actual survey
extent required will be less than the maximum extent included in the survey contract
(2) The geoteclmical investigation shall include three (3) borings
7. (Modified) Prepare a preliminary engineering report (the "Report") documenting the findings of the
H&H analysis, the project segments which require improvements, proposed storm sewer improvements,
project alternates and the construction cost estimate for proposed improvement.
8. Furnish three (3) review copies of the draft Report plus one (1) electronic copy to OWNER within sixty
(60) days of authorization to begin services and review the Report with OWNER.
9. Furnish three (3) final copies of the Report plus one electronic copy to OWNER within ten (10) days
after reviewing the draft of such submittal with OWNER.
B. (Modified) ENGINEER'S services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the Report has been delivered to and accepted by OWNER.
A 1.02 Not Used.
A1.03 Not Used.
A1.04 Not Used.
PART 2 -- ADDITIONAL SERVICES
A2.01 Additional Se)vices Requiring OWNER 's Attthoi-ization in Advance
Not Used.
A2.02 Required Additional Services
Not Used.
Page 2 of 9 Pages
(EXHIBIT A - Scope of Work)
Appendix A-1
TERMS AND CONDITIONS
1. Termination of Agreement for Cause. If the Firm fails to fulfill in a timely and proper manner its obligations
under this Agreement, or if the Firm violates any of the covenants, conditions, agreements, or stipulations of
this Agreement, the City/County shall have the right to terminate this Agreement by giving written notice to
the Firm of such termination and specifying the effective date thereof, which shall be at least five days
before the effective date of such termination. In the event of termination for cause, all finished or unfinished
documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Firm
pursuant to this Agreement shall, at the option of the City/County, be turned over to the City / County and
become the property of the City / County. In the event of termination for cause, the Firm shall be entitled to
receive reasonable compensation for any necessary services actually and satisfactorily performed prior to
the date of termination.
Notwithstanding the above, the Firm shall not be relieved of liability to the City/County for damages
sustained by the City/County by virtue of any breach of the Agreement by the Firm, and the City/County
may set-off the damages it incurred as a result of the Firn's breach of the contract from any amounts it
might otherwise owe the Firm.
2. Termination for Convenience of the City/County.
City/County may at any time and for any reason terminate Contractor's services and work at City/County's
convenience upon providing written notice to the Contractor specifying the extent of termination and the
effective date. Upon receipt of such notice, Contractor shall, unless the notice directs otherwise, immediately
discontinue the work and placing of orders for materials, facilities and supplies in connection with the
performance of this Agreement.
Upon such termination, Contractor shall be entitled to payment only as follows: (1) the actual cost of the work
completed in conformity with this Agreement; plus, (2) such other costs actually incurred by Contractor as are
permitted by the prime contract and approved by City/County; (3) plus ten percent (10%) of the cost of the
work referred to in subparagraph (1) above for overhead and profit. There shall be deducted from such sums
as provided in this subparagraph the amount of any payments made to Contractor prior to the date of the
termination of this Agreement. Contractor shall not be entitled to any claim or claim of lien against
City/County for any additional compensation or damages in the event of such termination and payment.
3. Changes. The City/County may, from time to time, request changes in the services the Firm will perform
under this Agreement. Such changes, including any increase or decrease in the amount of the Firm's
compensation, must be agreed to by all parties and finalized through a signed, written amendment to this
Agreement.
4. Resolution of Program Non -Compliance and Disallowed Costs. In the event of any dispute, claim, question,
or disagreement arising from or relating to this Agreement, or the breach thereof, including determination of
responsibility for any costs disallowed as a result of non-compliance with federal, state or TxCDBG
program requirements, the parties hereto shall use their best efforts to settle the dispute, claim, question or
disagreement. To this effect, the parties shall consult and negotiate with each other in good faith within 30
days of receipt of a written notice of the dispute or invitation to negotiate, and attempt to reach a just and
equitable solution satisfactory to both parties. If the matter is not resolved by negotiation within 30 days of
receipt of written notice or invitation to negotiate, the parties agree first to try in good faith to settle the
matter by mediation administered by the American Arbitration Association under its Commercial Mediation
Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. The
parties may enter into a written amendment to this Amendment and choose a mediator that is not affiliated
with the American Arbitration Association. The patties shall bear the costs of such mediation equally.
Page I of 6 Pages
(Appendix A-1— TxCDBG Project Implementation Manual Terms and Conditions)
[This section may also provide for the qualifications of the nrediator(s), the locale of meetings, time lindis,
or any other item of concern to the parties.] If the matter is not resolved through such mediation within 60
days of the initiation of that procedure, either party may proceed to file suit.
5. Personnel.
a. The Firm represents that he/she/it has, or will secure at its own expense, all personnel required in
performing the services under this Agreement. Such personnel shall not be employees of or have any
contractual relationship with the City/County.
b. All of the services required hereunder will be performed by the Firm or under its supervision and
all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under
State and Local law to perform such services.
C. None of the work or services covered by this Agreement shall be subcontracted without the prior
written approval of the City/County. Any work or services subcontracted hereunder shall be specified
by written contract or agreement and shall be subject to each provision of this Agreement.
6. Assi nability. The Firm shall not assign any interest on this Agreement, and shall not transfer any interest in
the same (whether by assignment or novation), without the prior written consent of the City/County thereto;
Provided, however, that claims for money by the Firm from the City/County under this Agreement may be
assigned to a bank, trust company, or other financial institution without such approval. Written notice of any
such assignment or transfer shall be furnished promptly to the City/County.
7. Reports and Information. The Firm, at such times and in such forms as the City/County may require, shall
furnish the City/County such periodic reports as it may request pertaining to the work or services
undertaken pursuant to this Agreement, the costs and obligations incurred or to be incurred in connection
therewith, and any other matters covered by this Agreement.
8. Records and Audits. The Firm shall insure that the City/County maintains fiscal records and supporting
documentation for all expenditures of funds made under this contract in a manner that conforms to 2 CFR
200.300-.309, 24 CFR 570.490, and this Agreement. Such records must include data on the racial, ethnic,
and gender characteristics of persons who are applicants for, participants in, or beneficiaries of the funds
provided under this Agreement. The Firm and the City/County shall retain such records, and any supporting
documentation, for the greater of three years from closeout of the Agreement or the period required by other
applicable laws and regulations.
9. Findings Confidential. All of the reports, information, data, etc., prepared or assembled by the Firm under
this contract are confidential and the Firm agrees that they shall not be made available to any individual or
organization without the prior written approval of the City/County.
10. Convriaht. No report, maps, or other documents produced in whole or in part under this Agreement shall be
the subject of an application for copyright by or on behalf of the Firm.
11. Compliance with Local Laws. The Firm shall comply with all applicable laws, ordinances and codes of the
State and local governments, and the Firm shall save the City/County harmless with respect to any damages
arising from any tort done in performing any of the work embraced by this Agreement.
12. Conflicts of interest.
a. Governing Bodv. No member of the governing body of the City/County and no other officer,
employee, or agent of the City/County, who exercises any functions or responsibilities in connection
Page 2 of 6 Pages
(Appendix A-1 TxCDBG Project Implementation Manual Terms and Conditions)
with administration, construction, engineering, or implementation of TxCDBG award between TDA
and the City / County, shall have any personal financial interest, direct or indirect, in the Firm or this
Agreement; and the Firm shall take appropriate steps to assure compliance.
b. Other Local Public Officials. No other public official, who exercises any functions or
responsibilities in connection with the planning and carrying out of administration, construction,
engineering or implementation of the TxCDBG award between TDA and the City/County, shall have
any personal financial interest, direct or indirect, in the Firm or this Agreement; and the Finn shall take
appropriate steps to assure compliance.
a. The Firm and Employees. The Firm warrants and represents that it has no conflict of interest
associated with the TxCDBG award between TDA and the City/County or this Agreement. The Firm
further warrants and represents that it shall not acquire an interest, direct or indirect, in any geographic
area that may benefit from the TxCDBG award between TDA and the City/County or in any business,
entity, organization or person that may benefit from the award. The Firm further agrees that it will not
employ an individual with a conflict of interest as described herein.
13. Debarment and Suspension (Executive Orders 12549 and 12689)
The Firm certifies, by entering into this Agreement, that neither it nor its principals are presently debarred,
suspended, or otherwise excluded from or ineligible for participation in federally -assisted programs under
Executive Orders 12549 (1986) and 12689 (1989). The term "principal' for purposes of this Agreement is
defined as an officer, director, owner, partner, key employee, or other person with primary management or
supervisory responsibilities, or a person who has a critical influence on or substantive control over the
operations of the Firm. The Firm understands that it must not make any award or permit any award (or
contract) at any tier to any party which is debarred or suspended or is otherwise excluded from or ineligible
for participation in Federal assistance programs under Executive Order 12549, "Debarment and
Suspension."
Federal Civil Rights Compliance.
14. Equal Opportune Clause (applicable to federally assisted construction contracts and subcontracts over
$10,000).
During the performance of this contract, the Firm agrees as follows:
a. The Firm will not discriminate against any employee or applicant for employment because of race, color,
religion, sex, sexual orientation, gender identity, or national origin. The Firm will take affirmative action
to ensure that applicants are employed, and that employees are treated during employment without
regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such
action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer;
recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Firm agrees to post in
conspicuous places, available to employees and applicants for employment, notices to be provided
setting forth the provisions of this nondiscrimination clause.
b. The Firm will, in all solicitations or advertisements for employees placed by or on behalf of the Firm,
state that all qualified applicants will receive considerations for employment without regard to race,
color, religion, sex, sexual orientation, gender identity, or national origin.
c. The Firm will not discourage or in any other manner discriminate against any employee or applicant for
employment because such employee or applicant has inquired about, discussed, or disclosed the
compensation of the employee or applicant or another employee or applicant. This provision shall not
apply to instances in which an employee who has access to the compensation information of other
Page 3 of 6 Pages
(Appendix A-1— TxCDBG Project Implementation Manual Terms and Conditions)
employees or applicants as a part of such employee's essential job functions discloses the compensation
of such other employees or applicants to individuals who do not otherwise have access to such
information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an
investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is
consistent with the contractor's legal duty to furnish information.
d. The Firm will send to each labor union or representative of workers with which he has a collective
bargaining agreement or other contract or understanding, a notice to be provided advising the said labor
lotion or workers' representatives of the Firms commitments under this section, and shall post copies of
the notice in conspicuous places available to employees and applicants for employment.
e. The Firm will comply with all provisions of Executive Order 11246 of September 24, 1965, "Equal
Employment Opportunity," and of the rules, regulations, and relevant orders of the Secretary of Labor.
f. The Firm will furnish all information and reports required by Executive Order 11246 of September 24,
1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will
permit access to his books, records, and accounts by the administering agency and the Secretary of
Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.
g. In the event of the Finals noncompliance with the nondiscrimination clauses of this contract or with any
of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole
or in part and the Firm may be declared ineligible for finther Government contracts or federally assisted
construction contracts in accordance with procedures authorized in Executive Order 11246 of September
24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive
Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as
otherwise provided by law.
h. The Firm will include the portion of the sentence irnmediately preceding paragraph (a) and the provisions
of paragraphs (a) through (h) in every subcontract or purchase order unless exempted by rules,
regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246
of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The
Finn will take such action with respect to any subcontract or purchase order as the administering agency
may direct as a means of enforcing such provisions, including sanctions for noncompliance: Provided,
however, That in the event a Finn becomes involved in, or is threatened with, litigation with a
subcontractor or vendor as a result of such direction by the administering agency the Finn may request
the United States to enter into such litigation to protect the interests of the United States.
15. Civil Rights Act of 1964. Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of
race, color, religion, sex, or national origin, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving Federal financial assistance.
16. Section 109 of the Housing and Community Development Act of 1974. The Firm shall comply with the
provisions of Section 109 of the Housing and Community Development Act of 1974. No person in the
United States shall on the ground of race, color, national origin, religion, or sex be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or activity
funded in whole or in part with funds made available under this title.
17. Section 504 of the Rehabilitation Act of 1973, as amended. The Firm agrees that no otherwise qualified
individual with disabilities shall, solely by reason of his/her disability, be denied the benefits of, or be
subjected to discrimination, including discrimination in employment, under any program or activity
receiving federal financial assistance.
18. Age Discrimination Act of 1975. The Firm shall comply with the Age Discrimination Act of 1975 which
provides that no person in the United States shall on the basis of age be excluded from participation in, be
Page 4 of 6 Pages
(Appendix A-1— TxCDBG Project Implementation Manual Terns and Conditions)
denied the benefits of, or be subjected to discrimination under any program or activity receiving federal
financial assistance.
19. Byrd Anti -Lobbying Amendment (31 U.S.C. 1352) (if contract greater than or equal to $100,000)
The Firm certifies that it will not and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any agency, a member of
Congress, officer or employee of Congress, or an employee of a member of Congress in connection with
obtaining this contract. The Firm shall disclose any lobbying with non -Federal funds that takes place in
connection with obtaining any Federal award.
[If this Contract is greater than $100,000, include the following Section 3 language.]
20. Economic Opportunities for Section 3 Residents and Section 3 Business Concerns.
a. The work to be performed under this contract is subject to the requirements of section 3 of the Housing
and Urban Development Act of 1968, as amended, 12 U.S.C. 1701 u (section 3). The purpose of section 3 is
to ensure that employment and other economic opportunities generated by HUD assistance or HUD -assisted
projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income
persons, particularly persons who are recipients of HUD assistance for housing.
b. The parties to this Agreement agree to comply with HUD's regulations in 24 CFR part 135, which
implement section 3. As evidenced by their execution of this contract, the parties to this Agreement certify
that they are under no contractual or other impediment that would prevent them from complying with the
pant 135 regulations.
c. The Firm agrees to send to each labor organization or representative of workers with which the Firm has
a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or
workers' representative of the Firm's cotmnit►ments under this section 3 clause, and will post copies of the
notice in conspicuous places at the work site where both employees and applicants for training and
employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth
minimum number and job titles subject to hire, availability of apprenticeship and training positions, the
qualifications for each; and the name and location of the person(s) taking applications for each of the
positions; and the anticipated date the work shall begin.
d. The Firm agrees to include this section 3 clause in every subcontract subject to compliance with
regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable
provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation
of the regulations in 24 CFR part 135. The Firm will not subcontract with any subcontractor where the Firm
has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part
135.
e. The Firm will certify that any vacant employment positions, including training positions, that are filled
(1) after the Firm is selected but before the contract is executed, and (2) with persons other than those to
whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled
to circumvent the Finn's obligations under 24 CFR part 135.
f. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this
Agreement for default, and debarment or suspension from future HUD assisted contracts.
g. With respect to work performed in connection with section 3 covered Indian housing assistance, section
7(b) of the Indian Self -Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the
work to be performed under this Agreement. Section 7(b) requires that to the greatest extent feasible (i)
preference and opportunities for training and employment shall be given to Indians, and (ii) preference in
the award of contracts and subcontracts shall be given to Indian organizations and Indian -owned Economic
Enterprises. Parties to this contract that are subject to the provisions of section 3 and section 7(b) agree to
Page 5 of 6 Pages
(Appendix A-1 — TxCDBG Project Implementation Manual Terms and Conditions)
comply with section 3 to the maximum extent feasible, but not in derogation of compliance with section
7(b).
Page 6 of 6 Pages
(Appendix A-1 TxCDBG Project Implementation Manual Terms and Conditions)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated 411 "� .
Initial:
OWNER
BNGWEER 117V
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 hi addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER
will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms,
conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. The OWNER must provide such information in
its hard copy (also known as printed copy) form if available.
C. (Modified) Following ENGINEER's assessment of initially -available Project information and data and upon
ENGINEER's written request, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. Not Used.
2.
Not Used.
3.
Not Used.
4.
Not Used.
5.
Not Used.
6.
Not Used.
D. Not
Used.
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform set -vices under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors
or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions
pertaining thereto.
H. Not Used.
Page l of 2 Pages
(Exhibit B OWNER's Responsibilities)
I. Not Used.
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructability review.
K. Not Used.
L. Not Used.
M. Not Used.
N. Not Used.
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 O NER and ENGINEER
for Professional Services dated
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and supplemented
to include the following agreement of the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope —Cost not to Exceed Method of Payment
Initial:
OWNER
ENGINEER_ 01/4�
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. Not Used.
A. OWNER shall pay ENGINEER for Basic C4.03 ForAddilional Services
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $55,755.00based upon the rate schedule,
which is attached as Appendix I of Exhibit C and
incorporated herein for all intents and purposes.
This amount does not include those ENGINEER'S
Consultant's charges as provided below in this
Article 4, Subparagraph C4.05, and will be
distributed at the completion of each of the phase in
the following amount:
a. Preliminary Engineering Phase .... $55,755.00
2. Not Used.
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. Not Used.
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period, which shall be a calendar month. Invoices
shall be tendered no more often than once a month
for all of the services performed during the
applicable month.
A. OWNER shall pay ENGINEER for Additional
Services as follows:
1. General. For services of ENGINEER's
employees engaged directly on the Project pursuant
to paragraph A2.01 or A2.02 of Exhibit A of the
Agreement, except for services as a consultant or
witness under paragraph A2.01.A.13, an amount
based upon the actual hours worked and the rate
schedule, which is attached as Appendix 1 of Exhibit
C and incorporated herein for all intents and
purposes plus Reimbursable Expenses. Additional
Services shall not be performed without the prior
written consent of the OWNER.
C4.04 For Reimbursable Expenses
A. (Modified) When not included in compensation
for Basic Services under paragraph C4.01, OWNER
shall pay ENGINEER for Reimbursable Expenses as
the rate set forth in Appendix 2 of this Exhibit C.
Before the OWNER shall be liable for any
reimbursable expenses, the ENGINEER must obtain
prior written approval of the OWNER of any expense
that exceeds $1,000 for which the ENGINEER seeks
reimbursement. Reimbursable Expenses shall not
exceed $2,160.
B. (Modified) Reimbursable Expenses include the
following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project -related items
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
in addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to ENGINEER for
Reimbursable Expenses will be the Project -related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter multiplied by
a Factor of (I.-(0). Travel, meals, mileage, rental cars,
and like expenses are not subject to the 1.10 Factor.
D. Not Used.
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 ForENGINEER's Consultant's Charges
A. (Modified) The consultant charges shall not
exceed the following amounts specified for each of the
following services, unless approved in writing by the
OWNER. The charges include the factor, and shall not
exceed the following without prior written consent of the
OWNER.
Preliminary Engineering Phase
Geotechnical Services .................$18,229.00
Topographic Survey ....................$35,872.00
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and wages
paid to ENGINEER's employees but does not include
payroll related costs or benefits.
B. Not Used.
4.07 Not Used.
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
identified in paragraphs C4.01 and C4.03, will be
based on the rate for the cumulative hours charged
to the Project during the billing period by all of
ENGINEER's employees, plus Reimbursable
Expenses and ENGINEER's Consultant's charges, if
any.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C — HOURLY RATES
Hourly Rates for ENGINEER'S Staff.
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
Principal/Managing Director
$255.00
Project Manager
$195.00
Senior Engineer
$180.00
Project Engineer
$165.00
Senior Design Technician
$120.00
Design Technician
$105.00
Admin/Clerical
$75.00
Page I of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C - REIMBURSEMENT OF COSTS
External Reproduction and Deliveries: Cost plus 10%
Internal expenses: Cost
Mileage: IRS Rate
Travel: Cost
Page I of 1 Pages
(Appendix 2 of Exhibit C Reimbursement of Costs)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWN R and ENGINEER
for Professional Services dated 1 J
Initial:
OWNER
ENGINEER m.TI�
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
06.05 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect insurance against claims for injuries to or death of persons or damages to property caused by the
ENGINEER's negligent operations and/or performance of the work under this Agreement, whether such operations
and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or subcontractors.
7 he LNGINEFR's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall fi►rnish
separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts required
in this contract.
Commercial General Liability (CGL)
General Aggregate: $2,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $1,000,000
a. Coverage shall be broad form CGL.
b. No coverage shall be excluded fi•onn standard policy without notification of individual exclusions being;
attached for review and acceptance.
c. Waiver of subrogation required.
Business Automobile Policy (BAP)
Combined Single Limits: $2,000,000
a. Coverage for "Any Auto."
b. Waiver of subrogation required.
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $1,000,000
Waiver of Subrogation required
Errors & Onussions (E&O)
Limit: $2,000,000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
Page 1 of 2 Pages
(Exhibit G - Insurance)
c. Coverage will be in force for three (3) years after project is completed.
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that thirty (30) days' prior
written notice of cancellation be given to the OWNER, provided that only ten (10) days' prior written notice to the
OWNER if the cancellation is due to the non-payment of a premium.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of A -MI 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. Certificates of insurance showing evidence of insurance coverage shall be provided to OWNER's representative
prior to execution of this agreement.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and part of
the Agreement between O?I N f 3 and ENGINEER for
Professional Services dated 3!
Initial:
OWNER yy,
ENGINEER /'/
Indemnification
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER")
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF
EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR
DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY
OR FOR ANY BREACH OF CONTRACT TO THE EXTENT
ARISING OUT OF OR IN CONNECTION WITH AN ACT OF
NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
ENGINEER OR THE ENGINEER'S AGENT, ENGINEER UNDER
CONTRACT, OR ANOTHER ENTITY OVER WHICH THE
ENGINEER EXERCISES CONTROL (COLLECTIVELY
ENGINEER'S PARTIES). IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT
OWNER FROM THE CONSEQUENCES OF ENGINEER'S
PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE
NEGLIGENCE AS WELL AS THE ENGINEER'S PARTIES'
INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS
ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT
IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF
ANY PERSON OTHER THAN THE ENGINEER'S PARTIES. IN
THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE OWNER FROM WHICH THE
OWNER IS INDEMNIFIED, ENGINEER FURTHER AGREES
AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL
SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS
AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER
hereby expressly revokes any consent to litigation that it may have granted by the terms
of this Contract or any other contract or agreement, any charter, or applicable state law.
Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity.
ENGINEER assumes full responsibility for its work performed hereunder and hereby
releases, relinquishes and discharges OWNER, its officers and employees from all
claims, demands, and causes of action of every kind and character for any injury to or
death of any person and/or any loss of or damage to any property that is caused by or
alleged to be caused by, arising out of, or in connection with ENGINEER's work to be
performed hereunder. This release shall apply with respect to ENGINEER's work
regardless of whether said claims, demands, and causes of action are covered in whole or
in part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and/or expiration of this Agreement.