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Ordinance No. 14,185ORDINANCE NO. 14,185 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH BINKLEY & BARFIELD, INC., FOR THE 2019 STREET RECONSTRUCTION PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED FOUR HUNDRED FORTY-TWO THOUSAND FOUR HUNDRED EIGHTY AND NO'100 DOLLARS ($442,480.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ************************************************************************************* BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with Binkley & Barfield, Inc., for the 2019 Street Reconstruction 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 Binkley & Barfield, Inc., in an amount not to exceed FOUR HUNDRED FORTY-TWO THOUSAND FOUR HUNDRED EIGHTY AND NO'100 DOLLARS ($442,480.00) for professional services in accordance with the agreement authorized in Section 1 hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by FIFTY THOUSAND AND NOI100 DOLLARS ($50,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25%). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the ve vote of the City Co it of the City of Baytown this the 26'h day of September, 2019. DON CAPETILLO, Mayo APPROVED AS TO FORM: r ACIO RAMIREZ, SR., V Attorney R:'•Karen Files .City Council Ordinances\2019 September26 BinkleyBarfield4f2019StreetReconstructionProject.doc Exhibit "A" STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of the _ day of September, 2019 ("Effective Date"). Between City of Baytown ("OWNER") and Binkley & Barfield, Inc. ("ENGINEER") OWNER intends to contract for engineering services in connection with the 2019 Street Bond Program, including the reconstruction, paving, drainage and utility improvements for the following streets located in Baytown, Harris County, Texas: ("Project'). The total length of the Project including all streets is approximately 1.48 miles (7,800 linear feet). This Project will be designed in accordance with City standards. The overall scope of this project will include the following elements: ➢ Design of a roadway project for the above -stated limits. The paving cross section is comprised of 2 travel lanes with concrete curb and gutter as well as asphalt and RCC as bid alternatives. BBI will evaluate and provide recommendations for pavement replacement. This will be confirmed through geotechnical borings and approved by The City of Baytown; ➢ Evaluate the drainage system along the corridor and side stre;.ts and determine the best way to improve the drainage as needed. This may involve adding inlets and adjusting grades as necessary; ➢ Replace the existing 6-inch cast iron waterline along Narcille Street from Ward to Sheridan; ➢ Replace the existing 12-inch AC force main along Narcille Street from Ward to Sheridan; ➢ Replace the existing 6-inch cast iron waterline along Colby Drive from Dale to Narcille; ➢ Provide or cause to be provided geotechnical, surveying, urban forestry, ADA compliance and environmental services for the Project; and ➢ Public involvement. 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 Paee ARTICLE I - 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 - GENERAL CONSIDERATIONS................................................................................................................. 4 6.01 Standards of Performance................................................................................................................................. 4 6.02 Authorized Project Representatives.................................................................................................................. 5 6.03 Design without Constriction 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...........................................................................................................................................1. 7 6.10 Hazardous Envirorunental Condition................................................................................................................ 7 6.11 Allocation of Risks............................................................................................................................................ 8 6.12 Notices............................................................................................................................................................... 8 6.13 Survival.............................................................................................................................................................. 8 6.14 Severability ........................................................................................................................................................ 8 6.15 Waiver............................................................................................................................................................... 8 6.16 Headings............................................................................................................................................................ 8 ARTICLE 7 - DEFINITIONS.............................................................................................................................................. 8 7.01 Defined Terms.................................................................................................................................................. 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS............................................................................................... 11 8.01 ExhibitsIncluded............................................................................................................................................. 11 8.02 Total Agreement.............................................................................................................................................. t 1 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 12 ARTICLE I - SERVICES OF ENGINEER 1.01 Scope A. ENGINEER, as an independent contractor, shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. (Modified). Upon issuance of a notice to proceed by the OWNER, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. C. (Deleted). ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified). ENGINEER's set -vices and compensation tinder this Agreement have been agreed to for the design of the Project together with other services specified in Exhibit A. ENGNEER's obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Deleted). C. (Modified). For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (Deleted) B. (Modified). If ENGINEER's services are delayed or suspended in whole or in part 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, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised, unless such delay or suspension is caused in whole or in part by 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 famished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. (Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.01.13, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to ENGINEER incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and ENGINEER shall not make a clahn against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with OIVNER's standard processing practices and will be submitted to OWNER monthly by ENGNEER, unless otherwise agreed. ENGINEER shall supply detailed back-up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. Invoices shall be received by the OWNER not later than sixty calendar (60) days from the date ENGINEER and/or its subconsultants perform the set -vices or incur the expense. Failure by ENGINEER to comply with the requirements herein in a timely manner with this requirement shall result in 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 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 tinder this Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that ENGINEER will not charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and/or withheld in accordance with paragraph 4.02 and that ENGINEER will not suspend services tinder 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 fiimished and all Reimbursable Expenses incurred through the effective date of termination provided all instruments of service have been tendered to the OWNER. 2. (Deleted). E. (Modified). Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. G. (Added). Indebtedness. If ENGINEER, at any time during the term of this agreement, incurs a debt, as the word is defined in section 2-662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the OWNER's Director of Finance in writing. If the OWNER's Director of Finance becomes aware that ENGINEER has incurred a debt, the OWNER's Director of Finance shall immediately notify ENGINEER in writing. If 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 ENGINEER under this Agreement, and ENGINEER waives any recourse therefor. G. (Added). 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 best judgment as an experienced and qualified professional generally familiar with the industry. Hower, er, since ENGINEER has no control over the cost of labor, materials, equipment, or services ftirnislted 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 Constriction Cost will not vary from opinions of probable Construction Cost prepared by ENGINEER. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. (Deleted). 5.03 Opinions of Total Project Costs A. (Deleted) ARTICLE 6 - GENERAL CONSIDERAI IONS 6.01 Standards of Performance A. (Modified). 1 he standard of care for all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by persons performing the applicable Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 disciplines, including, but not limited to, surveyors and professional engineers, practicing under similar circumstances at the same time and in the same locality. B. (Modified), . All professionals performing services tinder this Agreement shall be responsible for the technical accuracy of their services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER-fiunished information upon which ENGINEER is authorized to rely as provided in Section 6.0I.E. C. ENGINEER shall perform or flnnish 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 services. ENGINEER shall not be required to employ any ENGNEER's Consultant unacceptable to ENGINEER. D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER -mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. E. (Modified). OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to ENGINEER pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. Prior to the commencement of the Construction Phase, OWNER shall notify ENGINEER of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that ENGINEER will be requested to provide to OWNER or third parties in connection with the Project. OWNER and ENGINEER shall reach agreement on the terms of any such requested notice or certification, and OWNER shall authorize such Additional Services as are necessary to enable ENGINEER to provide the notices or certifications requested. H. (Modified). ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence ENGINEER cannot ascertain; provided, that ENGINEER has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGNEER 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 ENGINEER'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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 12 under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services (Deleted). 6.04 Use of Documents A. (Modified). Upon execution of this Agreement. ENGINEER grants to the OWNER an ownership interest in the Instruments of Service. ENGINEER shall obtain similar interests fiom ENGINEER's consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, 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 Instr unents 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 ENGINEER's name and all references to ENGINEER, and its consultants from the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER. This release of claims for the matters covered in this Paragraph 6.04.A shall be for the benefit of ENGM. ER, its officers, and employees and sub - consultants, as well as their successors and assigns. B. (Modified). Copies of OWNER-funmished data that may be relied upon by ENGINEER are limited to the printed copies that are delivered to ENGINEER pursuant to Exhibit B unless othet-Nvise 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 linuted to the printed copies (also known as hard copies) that are signed or scaled by the appropriate professional. Files in electrotuc media format of text, data, graphics; or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perfonu 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 from 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. II. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be teniunated: 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 clays of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cared 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 tip to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by ENGINEER. B. Not used. 6.07 Controlling Law A. This Agreement is to be governed by the taw 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.E the assigns of OWNER and ENGINEER) are hereby bound to .the other party to this Agreement and to the partners, successors, executors, adminstrators 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 assignnment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.0 shall appear in the Contract Documents. 6.09 Not Used. 6.10 Hazardous Environmental Condition A. OWNER represents to ENGINEER that to the best of its knowledge a Hazardous Environmental Condition does not exist. B. (Modified) OWNER has disclosed to the best of its knowledge and belief to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C. (Modified) If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER on or before the next business day of the same. D. It is acknowledged by both parties that ENGNEER'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 Enviromnental Condition, ENGINEER may, at its option and Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that die Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that ENGINEER is performing professional services for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the Site in connection with ENGINEER's activities tinder this Agreement. F. If ENGINEER's services tinder 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 (includhng 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 die opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services --The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement --This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment --The form acceptable to ENGINEER which is to be used by Contractor in requesting Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 12 progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos --Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services --The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Bid --The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents --The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Change Order --A document recommended by ENGINEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. 10. Construction Agreement --The written instrument which is evidence of the agreement, contained in the Contact 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. Constnretton 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 Us Agreement. Construction Cost is one of the items comprising Total Project Costs 13. (Modified). Contract Documents —Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor and all documents referenced therein, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, insurance documents the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price —The 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 ENGINEER'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 ternis 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 ENGL\'F,ER's recommendation of final payment. 19. Doccnnents--Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drawings --That part of the Contract Documents prepared or approved by ENGINEER which graphically Standard Form of Agreement Between Owner- and Engineer for Professional Services Page 9 of 12 shows the scope, extent, and character of the Work to be standards, and orders of any and all governmental bodies, performed by Contractor. Shop Drawings are not Drawings as agencies, authorities, and courts having jurisdiction, so defined. 21. Effective Date of the Construction Agreement —The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Constriction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement —The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two patties to sign and deliver. 23. ENGINEER's Consultants --Individuals or entities having a contract with ENGINEER to himish services with respect to this Project as ENGINEER's independent professional associates, consultants, subcontractors, or vendors. The tern 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 doctunentation 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 tnay present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste --The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Laws and Regulations; Laws or Regulations --Any and all applicable laws, rules, regulations, ordinances, codes, 30. PCB's--Polychlorinated biphenyls. 31. Petroleum--Petroletm, 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 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 fitrnished 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 term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples --Physical examplos 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 flurnished by OWNER upon which the Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39, Specifications --That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion --The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 41. Suppleinentar7, Conditions --That part of the Contract Documents which amends or supplements the General Conditions. 42. (Modified). Total Project Costs --The sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, compensation for damages to properties, OWNER's costs for legal, accounting, insurance counseling or auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 43. Work --The entire completed construction or the various separately identifiable parts thereof required to be provided wider 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 fun» shing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Work Change Directive --A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of ENGINEER, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 45. Written Amendment --A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non -engineering or non -technical rather than strictly construction -related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "ENGNEER's Services," consisting of eight (8) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to ENGINEER for Services and Reimbursable Expenses," consisting of two (2) pages. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative," is not used. E. Exhibit E, "Notice of Acceptability of Work," consisting of two (2) pages. F. Exhibit F, "Constriction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. I. Exhibit 1, "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 die Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral rmderstandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the. same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 IN WII'NF•,SS WHEREOF. the panties hereto have executed this Agreement, the Effective Date of which is indicated on page I . OWNI-R: CITY OF BAYTOWN Signature: _ Printed Name: Title. Cit-ovlanrt:<er Date Signed: Address for giving notices: P.O. Box 424 Baytown. -texas 77322 Designated Representative (paragraph 6.02.A): Name: Frank Simoncaux, P.E. I the Director of Public Works and Engincerinu Phone Number: (281) 420-5312 Facsimile Number: (281) 420-6586 E-Mail Address: frank.simoncauxevbayto�aia.org ENGINEER: Bin ey Id, Inc. Signature: - Printed Name. David A. Hamilton, P.F Title: Executive Vice President Date Signed: Address for giving notices: 1710 Scamist Drive I lotmon. 'I exas 77008 Designated Representative (paragraph 6,02.A): Name: fonuuv V. Cromer, P.E.. Title: Senior Project iVian aeer - fntr•astructure Phone Number: (713) 869-3.133 Facsimile Number: (713) 869-6702 E-flail Address: tvc@,binkIcybarficId.com Standard Form of Agreement Between Owmcr and Engineer for Professional Services Page 12 of 12 This is EXHIBIT A, consisting of 8 pages, rcfcrred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER EVGI\EER's Services Article l of the Agreement is amended and supplemented to include the following agreement of the parties ENGINEER shall provide Basic and Additional Services as set forth below. PART I -- BASIC SERVICES 0/lodified) A 1.01 Preliminaii- Design Phase A. ENGINEER shall: I. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data. 2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in Exhibit B, which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such data and services. 3. (Modified). Identity, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including, but not limited to, mitigating measures identified in the environmental assessment (if any). v 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. Conduct a kickoff meeting with OWNER b. Engage geotechnical, environmental and survey consultants for the Project. c. Compile a list of design criteria/assumptions/exceptions for the Project for the OWNER's review and approval, including, but not limited to: 1. Handling of structureslfencesllandscaping'trees encroaching in the right-of-way: 2. Replacement of existing utilities within the right-of-way and those within three -feet 3. of back -of -curb; 4. Developing paving options that include adjustments due to change in elevation, profile adjustments, driveways, intersections, manholes or curb ramps, if applicable; 5. Reviewing side slopes and roadside ditch grades due to changes in elevation, if applicable; 6. Developing a policy regarding areas with existing drainage issues where flooding presently occurs; 7. Upgrading utilities that are not currently in compliance with City design criteria, or are within 3 feet of the back -of -curb; 8. Handling of mailboxes, sidewalks, landings, and retaining wall replacement; 9. Handling of through the curb drains, driveway cuhverts, and private irrigation systents within the right-of-wa}; Page I of 8 Pages (EXHIBIT A - Scope of Work) 10. DeveIoping policy regarding return curbs at driveways for curb and gutter and open ditch roadways; 11. Developing policy regarding parking areas within the existing right-of-way and total width of driveway(s) allowed; and 12. Developing policy regarding wheelchair ramps. d. Retrieve water, sanitary sewer and stonn sewer block maps, designated AsBuilts/Record Drawings, LIDAR, 0 & M records, and private utility records for each street. Coordinate with private utility companies regarding their utility maintenance/replacement schedules and locations as part of the data collection efforts. e. Perform a visual inspection of the streets identified as part of the Project. f. Verify pavement conditions and existing utility locations. g. Assess all potential right-of-way conflicts as well as compliance with design criteria developed above. h. Photograph the streets for record purposes. i. Attend City Council workshop(s) session to present the study results. (Modified). Prepare a 30% submittal (the "30% Report") which will contain plan and profile drawings of the existing background and proposed facilities in plan view only, along with findings, comparisons of alternatives, and recommendations for the Project. This 30% Report will be accompanied by ENGINEER's opinion of Total Project Costs for each solution which is so recomrmended for the Project with each component separately itemized, including the following, which will be separately itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated Total Project Costs. The 30% Report shall include an overall exhibit showing the Project streets and the photographs of the streets. 8. Furnish six (6) review copies of the 30% Report to OWNER within one hundred twenty (120) calendar days of authorization to begin services and review it with OWNER. 9. Revise the 30% Report in response to OWNER's and other parties' comments, as appropriate, and furnish fourteen (14) final copies of the revised Report to the OWNER within ten (10) calendar days after completion of reviewing it 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 revised 30% Report has been delivered to and accepted by OWNER. A 1.02 Final Design Phase A. Upon written authorization from OWNER, ENGINEER shall: I. (Modified). Prepare final Drawings indicating the scope, extent, and character of the Work to be performed and fiunished by Contractor. Specifications will be prepared, where appropriate, in conformance with the 16-division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities, 3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER. 4. Perform or provide the following additional final Design Phase tasks or deliverables a. Prepare design plans and technical specifications for the proposed paving, drainage, and utility improvernentsfor the reconstruction of the streets, which constitute the Project; Page 2 of 8 Pages (EXHIBIT A - Scope of Work) b. Prepare both the written Storm Water Pollution Prevention Plan along with drawings and detaii I a c. Prepare traffic control plans for the proposed improvements in accordance with the Texas Manual on Uniform Traffic Control Devices (TM UTCD). d. Prepare quantity take -offs and an opinion of probable construction cost for the proposed improvements at the 60%, 90%, and 100% milestones. The deliverables for the 60% milestone regarding the plans shall only include submittal of the plan and profile sheets. e. The Contract Documents shall be included with the plans for both the 90% and 100% percent submittals. f. Prepare Project specific construction notes and specifications. g. The standard OWNER detail sheets for water, sewer, and storm and the standard OWNER detail sheet for paving details and typical cross -sections shall be included in the project plans. h. Cause to be performed the following services: 1. Surveying. A detailed topographical survey for each street segment identifying the evident rights -of - way will be performed. The survey shall establish surveying limits based on the best available information. This shall include a limit of 150 feet within the existing right-of- way in each direction for all intersections. The extra surveying efforts will assist to ascertain the existing drainage patterns. Further, the surveying fee is based on the premise that ENGINEER will have adequate control placed on the construction plans and the selected contractor will be responsible for construction staking. 2. Geotechnical Investigation. Geoteclurical services for the Project shall be provided in accordance with applicable City requirements. 3. Urban Forestry Urban forestry services, including a tree protection pldn, for the Project shall be provided in accordance with applicable City requirements. 4. Environmental Investigations A Phase l Environmental Site Assessment shall be provided on an as needed basis if conditions found in the field warrant environmental investigation as determined by OWNER and ENGINEER. 5. TDLR Review An ADA review shall be provided and plans shall be submitted to the TDLR for approval. i. All geometric design shall be in conformance with the applicable OWNER standards, except where variances are permitted, applicable Harris County standards, and TMUTCD. j. Consult with the OWNER and affected utility companies to define and clarify the project requirements and evai I able related data k. Meet and coordinate with the OWNER, Harris County Flood Control District (HCFCD), stakeholders, uti I i ty owners, as needed to faciI i tate coordination and approval of the Construction Documents, I. Prepare for and attend project status meetings with the OWNER. m. The Project will require plans to be reviewed in accordance with Texas Architectural Barriers Project Registration (TABPR) guidelines. ENGINEER will submit the drawings to a state licensed reviewer for review and approval. ENGINEER will prepare the TABPR application and estimate the review fee. ENGINEER will submit the completed application and a set of construction drawings to the reviewer for review and approval. ENGINEER will coordinate with the reviewer to address comments. Once all comments have been cleared, the Project will be registered with the Texas Department of Licensing and Regulations (TDLR). The application fee along with any review fee(s) required by TDLR will be a subcontractor fee, and therefore, will be billed as such. n Deliverables shall include construction documents submitted to the OWNER at the 60%. 900/6, and 100% milestones for review, comments, and approvals. The 100 percent submittal will indude the final contract documents including sped f i cati ons. Page 3 of 3 Pages (EXHIBIT A - Scope of Work) o. The final Contract Documents will be supplied by the OWNER as the standard Harris County specifications will be incorporated by reference, 5. Prepare a 60% submittal (the "60% Report") which will contain plan and profile drawings, along with fmdings, comparisons of alternatives, and recotnrnendations for the Project. This 60% Report will be accompanied by ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the Project with each component separately itemized, including the following, which will be separately itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated Total Project Costs. The 60% Report shall include an overall exhibit showing the Project streets and the photographs of the streets. 6. Furnish six (6) review copies of the 60% Report to OWNER within ninety (90) calendar days of authorization to begin final design services and review the report with the OWNER. 7. Furnish six (6) review copies of the 90% submittal, including Bidding Documents along with a revised opinion of probable Construction Cost to OWNER within one hundred fifty (150) calendar days of authorization to begin final design services and review it with OWNER. 8. Revise the 90% subtittal in response to OWNER's and other parties' comments, as appropriate, and incorporate such revisions in the 100% Bidding Documents. 9. Furnish six (6) review copies of the 100% Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, review it with OWNER, and assist OWNER in the preparation of other related documents . 10. Revise the 100% Bidding Documents in response to OWNER's and other parties' cocmnents, as appropriate, and submit 15 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within two hundred ten (210) calendar clays after authorization to proceed with this phase. 11. (Added). Prepare additional line items in the Bid Tabulations, assuming the project documentation, including plans and specifications, were originally prepared to reflect these items, as reasonably requested by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents. B. In the evert that the Work designed or specified by ENGINEER is to be performed or furnished under more than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast -tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services during the Final Design, Bidding or Negotiating, Construction, and Post -Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. C. The number of prime contracts for Work designed or specified by ENGINEER upon which ENGINEER's compensation has been established under this Agreement is one (1). D. (Modified). ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph A 1.02.A have been delivered to and accepted by OWNER. A1.03 Bidding or• Negotiating Phase A. After acceptance by OWNER of de Bidding Documents and (lie most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: Page 4 of 8 Pages (EXHIBIT A - Scope of Work) I. Assist OWNER in advertising for and obtaining bids for the Work. 2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Docu r ents. 3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those portions of the Work as to which such acceptability is required by the Bidding Documents. 4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: a Prepare bid evaluation and reference checks. b. Recommend award to the OWNER. c. Attend the Council meeting for award of the contract for the Project. 5. (Modified). Attend the Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. 6. (Added). Assist in connection with Bid protests, rebidding, or re -negotiating contracts for construction, materials, equipment, or services. B. (Modified). The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A1.04 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: General Administration of Consawetion Contract. Consult with OWNER; transmit instructions to the CONTRACTOR; and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. (Modified). Selecting Independent Testing Lahoratoiy. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01, if any. 3. Pre-Conshztetion Co ference. Participate in a Pre -Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarla. As appropriate, establish control and temporary benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. (Modified). Make visits to the Site at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Page 5 of 8 Pages (EXHIBIT A - Scope of Work) Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, ENGINEER will determine if Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the Work. b. (Modified). The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a fimctioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor- shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified). Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Wort, Change Directives. Recommend Change Orders and Work Change Directives to ONVTER, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings and Sampler. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. 10. Substitutes and "or -equal. " Evaluate and determine the acceptability of substitute or "or -equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. 11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such Page 6 of 8 Pages (EXHIBIT A - Scope of Work) certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. 12. (Modified). Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13..4pplications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Deternmine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER, based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents) The responsibilities of ENGINEER contained in paragraph A1.04,A.5.a are expressly subject to the limitations set forth in paragraph At 04.A.5.b and other express or general limitations in this Agreement and else%chere. b. By recommending any payment, ENG1NbER shall not thereby be deemed to have represented that observations made by ENGINEER to check the quality or quantity of Contractor's wor'.t as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's wor!,< in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including final payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. 14. Contractor's Completion Documents. a. (Modified). Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. ENGINEER will compile this information as provided by Contractor, and deliver three (3) copies of the same to OWNER. b. (Modified). Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Page 7 of 8 Pages (EXHIBIT A - Scope of Work) Samples and other data approved as provided under paragraph A1.04.A.9, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. The extent of such ENGINEER's review will be limited as provided in paragraph A1.04.A.9. c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents from Contractor. d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved by the OWNER and on mylar showing appropriate record information based on Project annotated record documents received from Contractor. 15. (Modified). Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that to the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due diligence, the Worlc is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Prase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C, Construction Phase services may be rendered at different tirnes in respect to the separate contracts. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of die Work. ENGINEFR shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contact Documents. PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Requiring OWNF.R's Authorization in Advance Not Included A2.02 Required Additional Services Not Included Page 8 of 8 Pages (EXHIBIT A - Scope of Work) This is EXHIBIT B. consisting of 2 paves, referred to in and part of the agreement between OWNER and ENGINEER for Professional Services slated Initial: OWNER ENGINEER OWNER's Responsibilities Article 2 of the ;agreement is amended and supplemented to include the following agreement of the patties. B2.01 In acichtion 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 lintitations: and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B, Furnish to ENGINEER any other available information pertinent to the Project including_ reports and data relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of the OWNER. C. (Ntoditied). Fallowing ENGINEER's assessment of initially -available Project information and data and upon ENGINSEER's mitten requCst, 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. I. (Deleted). 2. (Deleted). 3. (Deleted). 4. (Deleted). 5. (Deleted). 6. (Deleted). D. (Deleted). E. (Deleted). F. (Modified). Arrange for access to and make all provisions for ENGINEER to enter upon public property as required for ENGINEER to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely- decisions pertaining thereto. H. (Deleted). Page 1 of 2 Pages (Exhibit B - OWNER's Responsibilities) 1. (Deleted). J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructability review. K. (Deleted). L. (Deleted). M. (Deleted). N. (Deleted). Page 2 of 2 Pages (Exhibit B OWNER's Responsibilities) This is EXHIBIT C, consisting of 2 pages, referred to in and part of the .agreement bet►veen OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER 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 ENGINEER C4.0l For Basic Set -vices Having A Determineel Scope -Cost not to Exceed Method ofPavinent A. OWNER shall pay ENGINEER for Basic Services set tbrth in Exhibit A as follows: I. (tIvlodified) A cost not to exceed amount of . 296 010 based 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 Design S 35,660 b. Final Design Phase S 213,250 c. Bidding and Negotiating Services S 7,400 d. Construction Phase S 39,700 2. (iNIoditied). HNGNEER may with the consent of OWNER alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total cost not to exceed amount unless approved in writing by the OWNER. 3. The cost not to exceed includes compensation for ENGINEER's services and services of ENGINEER's Consultants (with the exception Of those Outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, overhead, and profit. 4. (Deleted). 5. The portion of the amount billed fur ENGINEER's services will be based upon total services actually completed during the billing period, which shall be a calendar month. Invoices shall be tendered no more often than once a month for all of the services performed during the applicable month. C4.02 For Bcrsic• Sert,ic•es Hen=ing An Cindeiermined Scope -- Direct Labor Costs Times a Factor Alethod of l'ar•ment A. (Not Used). C4.03 For,4dditional Set -vices A. OWNER shall pay ENGINEER for Additional Services as follows: I. General. For services of ENGINEER's employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A of the Agreement, except for services as a consultant or witness under paragraph A2.0l.A.13, an amount based upon the actual hours worked and the rate schedule, which is attached as Appendix I 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. (NIoditied). 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, ENGINEER must obtain prior written approval of the OWNER of any expense that exceeds S-500 for which ENGINEER Page I of 2 Pages (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method) seeks reimbursement, Reimbursable Expenses shall not exceed $5000 without the prior written consent of C4.08 Other Provisions Concerning Payment the Owner, B. (Modified). Reimbursable Expenses include the following categories: mileage, parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Project -related internal expenses actually incurred by ENGINEER based upon the rate schedule for reimbursable expenses, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of (1 10). D. (Deleted). E. (Added). The OWNER must approve all travel expenses before the same are incurred. If such approval is not obtained, the OWNER shall not be liable for such travel expenses. C4,05 ForENGINEER's Cotrstrltant's Charges A. (Modified). Whenever compensation to ENGINEER herein is stated to include charges of ENGINEER's Consultants, those charges shall be the amounts billed by ENGINEER's Consultants to ENGINEER times a Factor of (1,10). 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. (1) Geotechnical Report toBFr................$23,960 (2) Environmental -Phase I ESA (oBE) ... $11,000 (3) Topographic Survey.........................$96,700 (4) Tree Protection Plan & Details......... $12,490 (5) TDLR Review ....................................$1,820 C4.06 Direct Labor Costs A. Direct Labor Costs means salaries and wages paid to ENGINEER's employees but does not include payroll related costs or benefits. B. (Deleted). 4.07 Factors (Deleted) A. Progress Pgvntents. The portion of the amounts billed for ENGINEER's services which are identified in paragraphs C4.01 and C4.03, will be based on the Direct Labor Costs for the cumulative hours charged to the Project during the billing period by all of ENGINEER's employees, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. Page 2 of 2 Pages (Exhibit C - All Other Services.!Charges -- Cost not to Exceed Method of Payment) APPENDIX 1 OF EXHIBIT C — HOURLY RATES Hourly Rates for Engineering Staff: All services are to be billed on an hourly basis based on time and materials and based upon the following rates: Classification Hourly Rate Principal.................................................................................................................................$275.00 Sr. Project Manager................................................................................................................$250.00 ProjectManager......................................................................................................................$194.00 StructuralEngineer.................................................................................................................$194.00 ConstructionManager.............................................................................................................$194.00 Sr. Project Engineer................................................................................................................$163.00 ProjectEngineer...................................................................................................................... $13 9.00 FieldEngineer.........................................................................................................................$150.00 Electrical & Instrumentation Engineer....................................................................................$163.00 EngineerTechnician...............................................................................................................$136.00 EITII......................................................................................................................................$125.00 GraduateEngineer/EIT I.........................................................................................................$110.00 StructuralInspector.................................................................................................................$125.00 Constriction Observer/Sr. Inspector III..................................................................................$125.00 Construction Observer/Inspector II.........................................................................................$116.00 Construction Observer/Inspector I............................................................................................ $95.00 Sr. Designator.........................................................................................................................$105.00 Designator................................................................................................................................ $90.00 Sr. Utility Coordinator.............................................................................................................$151.00 UtilityCoordinator.................................................................................................................. $132.00 ProductionManager................................................................................................................$205.00 ProductionTechnician.............................................................................................................. $84.00 Sr. Electrical Designer............................................................................................................$143.00 Sr. CADD/Designcr................................................................................................................$135.00 CADD/Designer.....................................................................................................................$122.00 CADDTechnician..................................................................................................................S 100.00 Sr. Clerica l/Administrator/DocumentSpec ialist/Recordkeeper................................................. $85.00 Clerical/Administrator.............................................................................................................. $80.00 3DModeling ....................................................................... Daily Rate Daily Rate ........, Page 1 of 1 Pages (Appendix 1 of Exhibit C — Hourly Rates) APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS Reproduction and Deliveries: Cost plus 10% Mileage: IRS Rate Page 1 of 1 Pages (Appendix 2 of Exhibit C Reimbursement of Costs) This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: OWNER's Construction Contract Identification: EFFECTIVE DATE; OF THE CONSTRUCTION AGREEivIE\T: CONSTRUCTION CONTRACT DATE: ENGINEER: To: And To: OWNER CONTRACTOR Initial: OWNER ENGINEER • The undersi_ned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof. By: If Dated: Page I of 2 Pages (Exhibit E - Notice of Acceptability of Work) (Reverse side of Notice) CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the following terms and conditions to which all persons who receive said Notice and rely thereon agree: 1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality. 2. Said Notice reflects and is an expression of the professional judgment of ENGINEER. 3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof. 4. (Modified). Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been employed by OWNER to perform or furnish during constriction of the Project (including observation of the CONTRACTOR's work) under ENGINEER's Agreement with OWNER and applies to facts that are within ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER. 5. (Modified), Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Construction Contract nor an assumption of responsibility for any failure of the Contractor to fiunish and perform the work thereunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such failure and failed to notify the Owner of such failure and take appropriate action so that the same were corrected and brought into compliance with the Contract Documents. Page 2 of 2 Pages (Exhibit E — Notice of Acceptability of Work) This is EXHIBIT G, consisting of 2 pages, referred to in and part of tilt: Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 hrsrirunce Throughout the term of this Agreement, ENGINEER at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out 01' or result from ENGINEER's operations andlor performance of the work under this Agreement, whether such operations andlor performance be by ENGINEER. its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts anv of them may be liable. ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of ENGINEER's insurance and shall not contribute to it. Further, ENGINEER shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements tier each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list orstandard Insurance policie.; alone \\ith their respective mininuun coverage amounts required in this contract: Commercial General Liability (CGL) General Aggregate: S2,000,000 Products & Completed Operations: $1,000,000 Personal & Advertising Injury: S1,000,000 Per Occurrence: $1,000,000 a. Coverage shall be broad form CGL. b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: $1,000,000 a. Coverage for "Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability $1,000,000 Waiver of Subrogation required Errors & Omissions (E&O) Limit: S2,000,000 a. For all engineers, and/or design companies b. Claims -made form is acceptable. Page l 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 coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the OWNER via certified mail, return receipt requested. 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 or better. b. Waiver of subrogation required. c. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. d. Liability policies will be on occurrence form. E & O can be on claims -made form. e. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. f. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates of insurance shall be flrnished to OWNER's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to OWNER's representative prior to execution of this agreement. g. Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to OWNER's representative. Page 2 of 2 Pages (Exhibit G - Insurance) 'I his is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER FNGINEER 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, COURTCOSTS, 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 ENGINEER OR ENGINEER'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH ENGINEER EXERCISES CONTROL (COLLECTIVELY ENGINEER'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ENGINEER AND 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 ENGINEER'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALT. NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN ENGINEER'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE 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 INDErVINITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity. ENGINEER assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and/or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with ENGINEER's work to be performed hereunder. This release shall apply with respect to ENGINEER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Furthermore, the provisions contained in this Exhibit "K" shall survive the termination and/or expiration of this Agreement P:\Karen\Files\EngiueeringiEngineering Agreements\Binkley & Barfreldi2019 Street Reconstruction Project\StaudardFormofAgreement.doe ACOR" CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD9 ) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Marsh Wortham, a division of Marsh USA, Inc PO Box 1388 Houston, TX 77251-1388 CONTACT NAME: Marsh Wortham a division of Marsh USA, Inc PHONE FAX Ext : 713-526-3366 A/c No): 713-521-1951 E-MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAIC A wvvw.worthaminsurance.com INSURER A: Endurance American Specialty Insurance Co. 41718 INSURED Binkley & Barfield, Inc. 1710 Seamist Drive INSURER B : INSURERC: INSURERD: Houston TX 77008 INSURER E : INSURER F : COVtKA6t5 CEKY111-ICATE NUMBEK: 5f19R3R47 REVISION NUMBER! THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN RI ADDL UBR POLICY EFF POLICY EXP T -� L S TYPE OF INSURANCE { POLICY NUMBER MMIDDIYYYY MMIDD/YYYY I LIMITS COMMERCIAL GENERAL LIABILITY I EACH OCCURRENCE $ CLAIMS -MADE OCCUR LJ AMA R ED PREMISES Ea occurrence $ MED EXP (Any one person) $ PERSONAL & ADV INJURY I $ GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ POLICY PRO ❑ LOC JECT PRODUCTS - COMP/OP AGG } $ OTHER: $ AUTOMOBILE LIABILITY ANY AUTO I I I COMBINED SINGLE LIMIT Ea accident I $ BODILY INJURY (Per person) $ OWNED SCHEDULED . AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ HIRED NON -OWNED . AUTOS ONLY — AUTOS ONLY PROPERTY DAMAGE Per accident $ Is UMBRELLA LIAB OCCUR EXCESS LIAB CLAIMS -MADE _�DED I EACH OCCURRENCE Is AGGREGATE $ Is RETENTIONS WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANYPROPRIETOR(PARTNERIEXECUTIVE OFFICER,'MEMBEREXCLUDED? NIA PER I OTH- STATUTE ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ In NH) (MIf yandatory s, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT 1 $ A Professional Liability DPL10007756303 9/11/2018 Each Claim �9/111/2019 �$2,000,000 $2,000,000 Aggregate DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) I L MULULK City of Baytown Engineering Department P.O. Box 424 2401 Market Street Baytown TX 77522-0424 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Marsh Wortham, a division of Marsh USA, Inc. ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD 50963647 1 103I1TKLBAR 1 18l19 CT E60 S214pc/$2Y!ag I Julia Rodriguez 1 9/4/2019 3:07:48 PM 1CDTi I Page 1 of 3 THIS ENDORSEMENT AMENDS THE POLICY. PLEASE READ IT CAREFULLY. GENERAL CHANGE ENDORSEMENT (Amend Section X. CONDITIONS — SUBROGATION (CONTRACTUAL WAIVER)) It is agreed that: Section X, Conditions, Paragraph A is amended by adding the following: Notwithstanding the foregoing, if the Insured enters into a written contract to waive its rights of recovery against another party to the contract, and such waiver reduces or eliminates the Insurer's subrogation rights under this Policy, such waiver shall not constitute a violation of this section, provided that such contract was entered into by the Insured and effective prior to the commission of any Wrongful Act that would otherwise give rise to the Insurer's subrogation right. All other terms and conditions remain unchanged. Endurance American Specialty Insurance Company PL 10010107 Page 1 of 1 50963647 1 103!NKLBAR 1 18/19 OT E60 $2Mpc/$2Mag I Julia Rodriguez 1 9/4/2019 3:07:43 PDI !CDTi ENDORSEMENT Named Insured: <<Named Insured» Policy Number: <<Policy Number» Endorsement Endorsement Effective Date: <<Date» Number: <<Endt.No>> 12:01 AM Standard Time at the address of the Named Insured as shown in the Declarations. GENERAL CHANGE MANUSCRIPT (Notice of Cancellation to Third Parties) It is agreed that: I. Subsection X.G. Cancellation is amended by the addition of the following: Notice of Cancellation to Third Parties 1. If this Policy is cancelled by the Insurer for any reason other than non-payment of premium, then the Insurer shall endeavor to give to the Specified Third Parties identified on the then current list of Specified Third Parties maintained by the Insured or the Insured's representatives written notice of such cancellation not less than thirty (30) days prior to the effective date of cancellation. Failure by the Insurer to provide such notice to the Specified Third Parties shall not: (i) delay the effective date of cancellation; or (ii) impose liability of any kind upon the Insurer or its agents or representatives. 2. If this Policy is cancelled by the Insured, then the Insurer shall endeavor to give to the Specified Third Parties identified on the then current list of Specified Third Parties maintained by the Insured or the Insured's representatives written notice of such cancellation as soon as practicable after the Insurer receives notice of cancellation from the Insured. Failure by the Insurer to provide such notice to the Specified Third Parties shall not: (i) delay the effective date of cancellation; or (ii) impose liability of any kind upon the Insurer or its agents or representatives. II. Solely for purposes of this Endorsement, Specified Third Parties means any customers or clients of the Insured that the Insured is required by a written contract with such customer or client, to add to this Policy as a party to whom the Insurer will notify in the event that this Policy is cancelled. <<electronic signature>> Authorized Representative This endorsement does not change any other provision of the Policy. The title and any headings in this endorsement are solely for convenience and do not affect its meaning. Date of Issuance: <<Issuance Date>> <<Endurance Insurer» Page 1 of 1 Policy Form: AEC 0232 0614 Endorsement Form: IL 10010712 50963647 1 1031',KLBAP. 118/19 OT E60 S2Mpc1$2Mag I Julia P.odriguez 1 9/4/2019 3:07:48 PM Me I Page 3 of 3 Aco CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDDNYYY) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). CONPRODUCER Marsh Wortham, NAME: �T Marsh Wortham, a division Of Marsh USA, Inc a division of Marsh USA, Inc PHONE FAX PO Box 1388 ExtL 713-526-3366 A/C No : 713-521-1951 _ E-MAIL Houston, TX 77251-1388 ADDRESS: www.worthaminsurance.com INSURED Binkley & Barfield, Inc. 1710 Seamist Drive Houston TX 77008 INSURER A: Hartford Fire INSURERS: Hartford Cas INSURER C : PrODerty and INSURER E : Ins CnVFRAGFS CERTIFICATE Nt1MRFR- SnoeRAlz RFVISIr)N NIIMRFR- THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL s0im POLICY EFF ` POLICY EXP LTR POLICY NUMBER IMMIDD/YYYY I MM/DD/YYYY LIMITS A GENERAL LIABILITY + 3/20/2019 3/20/2020 EACH OCCURRENCE $1000000 TCOMMERCIAL CLAIMS -MADE / OCCUR DA A R N PREMISES Ea occurrence $ 300,000 MED EXP (Any one person) $ 10,000 PERSONAL 8 ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRO - POLICY ✓a ECT LOC GENERAL AGGREGATE $ 2,000,000 PRODUCTS - COMP/OP AGG $ 2,000.000 $ OTHER: A AUTOMOBILE LIABILITY ' 3/20/2019 3/20/2020 CEOMaBIINdEeDISINGLELIMIT $1,000,000 BODILY INJURY (Per person) $ ✓ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ HIRED NON -OWNED AUTOS ONLY AUTOS ONLY - PROPERTY DAMAGE Per accident $ ($ Is B �/ UMBRELLA LIAB ,/ 0 C C U R ': 3/20/2019 3/20/2020 EACHOCCURRENCE Is 1,000 000 AGGREGATE $ 1 000 000 EXCESS LIAR CLAIMS -MADE $ DED ✓ FRETENTION$10.000 C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANYPROPRIETORJPARTNER/EXECUTIVE OFFICERiMEMBEREXCLUE ❑N N/A 3/20/2019 3/20/2020 �/ SPR TATUTE ERH E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $1.000.000 (Mandatory In NH) If as, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT 1 $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, maybe attached If more space is required) Re: 2019 Street Bond Program Additional insured status and waiver of subrogation afforded to certificate holder per attached endorsements. City of Baytown Engineeringg Department PO Box 424 2401 Market Street Baytown TX 77522-0424 UANGtLLA I IUN SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Marsh Wortham, a division of Marsh USA, Inc. ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016103) The ACORD name and logo are registered marks of ACORD 50948813 1 103iNKLBAR 1 -3 20 19-20 33 s Baseline CASUALTY MASTER I Angela Uarza 1 9/4/2019 30:22:0- AM I Page 1 of 17 This certificate cancels and supersedes ALL previously issued certificates. COMMERCIAL AUTOMOBILE HA99160312 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTOMOBILE BROAD FORM ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM To the extent that the provisions of this endorsement provide broader benefits to the "insured" than other provisions of the Coverage Form, the provisions of this endorsement apply. 1. BROAD FORM INSURED A. Subsidiaries and Newly Acquired or Formed Organizations The Named Insured shown in the Declarations is amended to include: (1) Any legal business entity other than a partnership or joint venture, formed as a subsidiary in which you have an ownership interest of more than 50% on the effective date of the Coverage Form. However, the Named Insured does not include any subsidiary that is an "insured" under any other automobile policy or would be an "insured" under such a policy but for its termination or the exhaustion of its Limit of Insurance. (2) Any organization that is acquired or formed by you and over which you maintain majority ownership. However, the Named Insured does not include any newly formed or acquired organization: (a) That is a partnership or joint venture, (b) That is an "insured" under any other policy, (c) That has exhausted its Limit of Insurance under any other policy, or (d) 180 days or more after its acquisition or formation by you, unless you have given us notice of the acquisition or formation. Coverage does not apply to "bodily injury" or "property damage" that results from an "accident" that occurred before you formed or acquired the organization. B. Employees as Insureds Paragraph A.1. - WHO IS AN INSURED - of SECTION II - LIABILITY COVERAGE is amended to add: d. Any "employee" of yours while using a covered "auto" you don't own, hire or borrow in your business or your personal affairs. C. Lessors as Insureds Paragraph A.1. - WHO IS AN INSURED - of Section II - Liability Coverage is amended to add: e. The lessor of a covered "auto" while the "auto" is leased to you under a written agreement if: (1) The agreement requires you to provide direct primary insurance for the lessor and (2) The "auto" is leased without a driver. Such a leased "auto" will be considered a covered "auto" you own and not a covered "auto" you hire. D. Additional Insured if Required by Contract (1) Paragraph A.1. - WHO IS AN INSURED - of Section II - Liability Coverage is amended to add: f. When you have agreed, in a written contract or written agreement, that a person or organization be added as an additional insured on your business auto policy, such person or organization is an "insured", but only to the extent such person or organization is liable for "bodily injury" or "property damage" caused by the conduct of an "insured" under paragraphs a. or b. of Who Is An Insured with regard to the ownership, maintenance or use of a covered "auto." © 2011, The Hartford (Includes copyrighted material Form HA 99 16 0312 of ISO Properties, Inc., with its permission.) Page 1 of 5 50948'el3 1 1031NKLBAP. 1 •3120/19-20 B3 & Baseline CASUALTY MASTER I Angela Garza 1 9/4l2019 10:22:07 AM (C.^T1 I Page 2 of 17 This certificate cancels and supersedes ALL previously issued certificates. The insurance afforded to any such E. Primary and Non -Contributory if additional insured applies only if the Required by Contract "bodily injury" or "property damage" Only with respect to insurance provided to occurs: an additional insured in 1.D. - Additional (1) During the policy period, and Insured If Required by Contract, the (2) Subsequent to the execution of such following provisions apply: written contract, and (3) Primary Insurance When Required By (3) Prior to the expiration of the period Contract of time that the written contract This insurance is primary if you have requires such insurance be provided agreed in a written contract or written to the additional insured. agreement that this insurance be (2) How Limits Apply primary. If other insurance is also If you have agreed in a written contract primary, we will share with all that other or written agreement that another insurance by the method described in Other Insurance 5.d. person or organization be added as an additional insured on your policy, the (4) Primary And Non -Contributory To Other most we will pay on behalf of such Insurance When Required By Contract additional insured is the lesser of: If you have agreed in a written contract (a) The limits of insurance specified in or written agreement that this insurance the written contract or written is primary and non-contributory with the agreement; or additional insured's own insurance, this (b) The Limits of Insurance shown in insurance is primary and we will notseek the Declarations. contribution from that other insurance. Such amount shall be a part of and not Paragraphs (3) and (4) do not apply to other in addition to Limits of Insurance shown insurance to which the additional insured in the Declarations and described in this has been added as an additional insured. Section. When this insurance is excess, we will have no (3) Additional Insureds Other Insurance duty to defend the insured against any "suit" if If we cover a claim or "suit" under this any other insurer has a duty to defend the Coverage Part that may also be covered insured against that "suit". If no other insurer by other insurance available to an defends, we will undertake to do so, but we will additional insured, such additional be entitled to the insured's rights against all insured must submit such claim or "suit" those other insurers. to the other insurer for defense and When this insurance is excess over other indemnity. insurance, we will pay only our share of the However, this provision does not apply amount of the loss, if any, that exceeds the sum to the extent that you have agreed in a of: written contract or written agreement (1) The total amount that all such other that this insurance is primary and non- insurance would pay for the loss in the contributory with the additional insured's absence of this insurance; and own insurance. (2) The total of all deductible and self -insured (4) Duties in The Event Of Accident, Claim, amounts under all that other insurance. Suit or Loss If you have agreed in a written contract We will share the remaining loss, if any, by the method described in Other Insurance 5.d. or written agreement that another person or organization be added as an 2. AUTOS RENTED BY EMPLOYEES additional insured on your policy, the Any "auto" hired or rented by your "employee" additional insured shall be required to on your behalf and at your direction will be comply with the provisions in LOSS considered an "auto" you hire. CONDITIONS 2. - DUTIES IN THE The OTHER INSURANCE Condition is amended EVENT OF ACCIDENT, CLAIM , SUIT by adding the following: OR LOSS — OF SECTION IV — BUSINESS AUTO CONDITIONS, in the same manner as the Named Insured. © 2011, The Hartford (Includes copyrighted material Form HA 99 16 0312 of ISO Properties, Inc., with its permission.) Page 2 of 5 50948.13 10BINKLBAP. 1 •3 20 19-20 33 S.Baseline CASUALTY MASTER I Angela Garza 1 9 4 2019 10:22:3- AM JCP71 I Page 3 of 17 This certificate cancels and supersedes ALL previously issued certificates. If an "employee's" personal insurance also 5. applies on an excess basis to a covered "auto" hired or rented by your "employee" on your behalf and at your direction, this insurance will be primary to the "employee's" personal insurance. 3. AMENDED FELLOW EMPLOYEE EXCLUSION EXCLUSION 5. - FELLOW EMPLOYEE - of SECTION II - LIABILITY COVERAGE does not apply if you have workers' compensation insurance in -force covering all of your ,.employees". Coverage is excess over any other collectible insurance. 4. HIRED AUTO PHYSICAL DAMAGE COVERAGE If hired "autos" are covered "autos" for Liability Coverage and if Comprehensive, Specified Causes of Loss, or Collision coverages are provided under this Coverage Form for any "auto" you own, then the Physical Damage Coverages provided are extended to "autos" you hire or borrow, subject to the following limit. The most we will pay for "loss" to any hired "auto" is: (1) $100,000; (2) The actual cash value of the damaged or stolen property at the time of the "loss"; or (3) The cost of repairing or replacing the damaged or stolen property, whichever is smallest, minus a deductible. The deductible will be equal to the largest deductible applicable to any owned "auto" for that coverage. No deductible applies to "loss" caused by fire or lightning. Hired Auto Physical Damage coverage is excess over any other collectible insurance. Subject to the above limit, deductible and excess provisions, we will provide coverage equal to the broadest coverage applicable to any covered "auto" you own. We will also cover loss of use of the hired "auto" if it results from an "accident", you are legally liable and the lessor incurs an actual financial loss, subject to a maximum of $1000 per "accident". This extension of coverage does not apply to any "auto" you hire or borrow from any of your ..employees", partners (if you are a partnership), members (if you are a limited liability company), or members of their households. PHYSICAL DAMAGE - ADDITIONAL TEMPORARY TRANSPORTATION EXPENSE COVERAGE Paragraph AA.a. of SECTION III - PHYSICAL DAMAGE COVERAGE is amended to provide a limit of $50 per day and a maximum limit of $1,000. 6. LOAN/LEASE GAP COVERAGE Under SECTION III - PHYSICAL DAMAGE COVERAGE, in the event of a total "loss" to a covered "auto", we will pay your additional legal obligation for any difference between the actual cash value of the "auto" at the time of the "loss" and the "outstanding balance" of the loan/lease. "Outstanding balance" means the amount you owe on the loan/lease at the time of "loss" less any amounts representing taxes; overdue payments; penalties, interest or charges resulting from overdue payments; additional mileage charges; excess wear and tear charges; lease termination fees; security deposits not returned by the lessor; costs for extended warranties, credit life Insurance, health, accident or disability insurance purchased with the loan or lease; and carry-over balances from previous loans or leases. 7. AIRBAG COVERAGE Under Paragraph B. EXCLUSIONS - of SECTION III - PHYSICAL DAMAGE COVERAGE, the following is added: The exclusion relating to mechanical breakdown does not apply to the accidental discharge of an airbag. 8. ELECTRONIC EQUIPMENT - BROADENED COVERAGE a. The exceptions to Paragraphs B.4 - EXCLUSIONS - of SECTION III - PHYSICAL DAMAGE COVERAGE are replaced by the following: Exclusions 4.c. and 4.d. do not apply to equipment designed to be operated solely by use of the power from the "auto's" electrical system that, at the time of "loss", is: (1) Permanently installed in or upon the covered "auto' (2) Removable from a housing unit which is permanently installed in or upon the covered "auto' (3) An integral part of the same unit housing any electronic equipment described in Paragraphs (1) and (2) above; or C 2011, The Hartford (Includes copyrighted material Form HA 99 16 03 12 of ISO Properties, Inc., with its permission.) Page 3 of 5 50948c1_3 103I VKLBAR •3/20/19-20 33 6 Sase:ine CASUALTY MASTER I Angela Garza 1 9/4/2019 10:22:07 AM ..: Page 4 of 17 This certificate cancels and supersedes ALL previously issued certificates. (4) Necessary for the normal operation of the covered "auto" or the monitoring of the covered "auto's" operating system. b. Section III — Version CA 00 01 03 10 of the Business Auto Coverage Form, Physical Damage Coverage, Limit of Insurance, Paragraph C.2 and Version CA 00 01 10 01 of the Business Auto Coverage Form, Physical Damage Coverage, Limit of Insurance, Paragraph C are each amended to add the following: $1,500 is the most we will pay for "loss" in any one "accident" to all electronic equipment (other than equipment designed solely for the reproduction of sound, and accessories used with such equipment) that reproduces, receives or transmits audio, visual or data signals which, at the time of "loss", is: (1) Permanently installed in or upon the covered "auto" in a housing, opening or other location that is not normally used by the "auto" manufacturer for the installation of such equipment; (2) Removable from a permanently installed housing unit as described in Paragraph 2.a. above or is an integral part of that equipment; or (3) An integral part of such equipment. c. For each covered "auto", should loss be limited to electronic equipment only, our obligation to pay for, repair, return or replace damaged or stolen electronic equipment will be reduced by the applicable deductible shown in the Declarations, or $250, whichever deductible is less. 9. EXTRA EXPENSE - BROADENED COVERAGE Under Paragraph A. - COVERAGE - of SECTION III - PHYSICAL DAMAGE COVERAGE, we will pay for the expense of returning a stolen covered "auto" to you. 10. GLASS REPAIR - WAIVER OF DEDUCTIBLE Under Paragraph D. - DEDUCTIBLE - of SECTION III - PHYSICAL DAMAGE COVERAGE, the following is added: No deductible applies to glass damage if the glass is repaired rather than replaced. 11. TWO OR MORE DEDUCTIBLES Under Paragraph D. - DEDUCTIBLE - of SECTION III - PHYSICAL DAMAGE COVERAGE, the following is added: If another Hartford Financial Services Group, Inc. company policy or coverage form that is not an automobile policy or coverage form applies to the same "accident", the following applies: (1) If the deductible under this Business Auto Coverage Form is the smaller (or smallest) deductible, it will be waived; (2) If the deductible under this Business Auto Coverage Form is not the smaller (or smallest) deductible, it will be reduced by the amount of the smaller (or smallest) deductible. 12. AMENDED DUTIES IN THE EVENT OF ACCIDENT, CLAIM, SUIT OR LOSS The requirement in LOSS CONDITIONS 2.a. - DUTIES IN THE EVENT OF ACCIDENT,CLAIM, SUIT OR LOSS - of SECTION IV - BUSINESS AUTO CONDITIONS that you must notify us of an "accident" applies only when the "accident" is known to: (1) You, if you are an individual; (2) A partner, if you are a partnership; (3) A member, if you are a limited liability company; or (4) An executive officer or insurance manager, if you are a corporation. 13. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS If you unintentionally fail to disclose any hazards existing at the inception date of your policy, we will not deny coverage under this Coverage Form because of such failure. 14. HIRED AUTO - COVERAGE TERRITORY Paragraph e. of GENERAL CONDITIONS 7. - POLICY PERIOD, COVERAGE TERRITORY - of SECTION IV - BUSINESS AUTO CONDITIONS is replaced by the following: e. For short-term hired "autos", the coverage territory with respect to Liability Coverage is anywhere in the world provided that if the "insured's" responsibility to pay damages for "bodily injury" or "property damage" is determined in a "suit," the "suit" is brought in the United States of America, the territories and possessions of the United States of America, Puerto Rico or Canada or in a settlement we agree to. 15. WAIVER OF SUBROGATION TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US - of SECTION IV - BUSINESS AUTO CONDITIONS is amended by adding the following: © 2011, The Hartford (Includes copyrighted material Form HA 9916 03 12 of ISO Properties, Inc., with its permission.) Page 4 of 5 50948613 1031NIMBAR 1 •3/20/19-20 33 S Baseline CASUALTY MASTER I Angela Garza 1 9/4/2019 10:22:07 AM (CDT) i Page 5 of 17 This certificate cancels and supersedes ALL previously issued certificates. We waive any right of recovery we may have against any person or organization with whom you have a written contract that requires such waiver because of payments we make for damages under this Coverage Form. 16. RESULTANT MENTAL ANGUISH COVERAGE The definition of "bodily injury" in SECTION V- DEFINITIONS is replaced by the following: "Bodily injury" means bodily injury, sickness or disease sustained by any person, including mental anguish or death resulting from any of these. 17. EXTENDED CANCELLATION CONDITION Paragraph 2. of the COMMON POLICY CONDITIONS - CANCELLATION - applies except as follows: If we cancel for any reason other than nonpayment of premium, we will mail or deliver to the first Named Insured written notice of cancellation at least 60 days before the effective date of cancellation. 18. HYBRID, ELECTRIC, OR NATURAL GAS VEHICLE PAYMENT COVERAGE In the event of a total loss to a "non -hybrid" auto for which Comprehensive, Specified Causes of Loss, or Collision coverages are provided under this Coverage Form, then such Physical Damage Coverages are amended as follows: a.lf the auto is replaced with a "hybrid" auto or an auto powered solely by electricity or natural gas, we will pay an additional 10%, to a maximum of $2,500, of the "non -hybrid" auto's actual cash value or replacement cost, whichever is less, b.The auto must be replaced and a copy of a bill of sale or new lease agreement received by us within 60 calendar days of the date of "loss," c. Regardless of the number of autos deemed a total loss, the most we will pay under this Hybrid, Electric, or Natural Gas Vehicle Payment Coverage provision for any one "loss" is $10,000. For the purposes of the coverage provision, a.A "non -hybrid" auto is defined as an auto that uses only an internal combustion engine to move the auto but does not include autos powered solely by electricity or natural gas. b.A "hybrid" auto is defined as an auto with an internal combustion engine and one or more electric motors; and that uses the internal combustion engine and one or more electric motors to move the auto, or the internal combustion engine to charge one or more electric motors, which move the auto. 19. VEHICLE WRAP COVERAGE In the event of a total loss to an "auto" for which Comprehensive, Specified Causes of Loss, or Collision coverages are provided under this Coverage Form, then such Physical Damage Coverages are amended to add the following: In addition to the actual cash value of the "auto", we will pay up to $1,000 for vinyl vehicle wraps which are displayed on the covered "auto" at the time of total loss. Regardless of the number of autos deemed a total loss, the most we will pay under this Vehicle Wrap Coverage provision for any one "loss" is $5,000. For purposes of this coverage provision, signs or other graphics painted or magnetically affixed to the vehicle are not considered vehicle wraps. © 2011, The Hartford (Includes copyrighted material Form HA 99 16 0312 of ISO Properties, Inc., with its permission.) Page 5 of 5 509486.3 1031%KLBAP. 1 •3/20/19-20 33 S Baseline CASUALTY MASTER I Angela Garza 1 9/4 2019 10:22:07 AM (CDT) I Page 6 of 17 This certificate cancels and supersedes ALL previously issued certificates. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION TO CERTIFICATE HOLDER(S) This policy is subject to the following additional Conditions: A. If this policy is cancelled by the Company, other than for nonpayment of premium, notice of such cancellation will be provided at least thirty (30) days in advance of the cancellation effective date to the certificate holder(s) with mailing addresses on file with the agent of record or the Company. B. If this policy is cancelled by the Company for nonpayment of premium, or by the insured, notice of such cancellation will be provided within (10) Form IH 03 07 06 11 days of the cancellation effective date to the certificate holder(s) with mailing addresses on file with the agent of record or the Company. If notice is mailed, proof of mailing to the last known mailing address of the certificate holder(s) on file with the agent of record or the Company will be sufficient proof of notice. Any notification rights provided by this endorsement apply only to active certificate holder(s) who were issued a certificate of insurance applicable to this policy's term. Page 1 of 1 © 2011, The Hartford 50948613 1031\KLBAP. I •3/20il9-20 33 S Baseline CASUALTY WASTER I Angela Garza 1 9/4/2019 10:22:07 AM (CDT) I Page 7 of 17 This certificate cancels and supersedes ALL previously issued certificates. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS NOTICE OF MATERIAL CHANGE ENDORSEMENT This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the Information Page. In the event of cancellation or other material change of the policy, we will mail advance notice to the person or organization named in the Schedule. The number of days advance notice is shown in the Schedule. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Number of days advance notice: 30 2. Notice will be mailed to: City of Baytown Engineeringg Department PO Box 424 2401 Market Street Baytown TX 77522-0424 Form WC 42 06 01 Printed in U.S.A. Process Date: SCHEDULE Countersigned by f i74 A4.. ?#MffaM a SM, .`. ;D. Authorized Representative Policy Expiration Date:03;20 2020 509486/3 1 0Bi�KLBAR I •3120i19-20 BB 6 Baseline CASUALTY 11ASTER i Angela Garza i 9/4/2019 '-0:22:07 Ant ICDTt I Page 8 of 17 This certificate cancels and supersedes ALL previously issued certificates. Our obligation to defend an insured's indemnitee and to pay for attorneys' fees and necessary litigation expenses as Supplementary Payments ends when: a. We have used up the applicable limit of insurance in the payment of judgments or settlements; or b. The conditions set forth above, or the terms of the agreement described in Paragraph f. above, are no longer met. SECTION II — WHO IS AN INSURED 1. If you are designated in the Declarations as: a. An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner. b. A partnership or joint venture, you are an insured. Your members, your partners, and their spouses are also insureds, but only with respect to the conduct of your business. c. A limited liability company, you are an insured. Your members are also insureds, but only with respect to the conduct of your business. Your managers are insureds, but only with respect to their duties as your managers. d. An organization other than a partnership, joint venture or limited liability company, you are an insured. Your "executive officers" and directors are insureds, but only with respect to their duties as your officers or directors. Your stockholders are also insureds, but only with respect to their liability as stockholders. e. A trust, you are an insured. Your trustees are also insureds, but only with respect to their duties as trustees. 2. Each of the following is also an insured: a. Employees And Volunteer Workers Your "volunteer workers" only while performing duties related to the conduct of your business, or your "employees", other than either your "executive officers" (if you are an organization other than a partnership, joint venture or limited liability company) or your managers (if you are a limited liability company), but only for acts within the scope of their employment by you or while performing duties related to the conduct of your business. However, none of these "employees" or "volunteer workers" are insureds for: (1) "Bodily injury" or "personal and advertising injury (a) To you, to your partners or members (if you are a partnership or joint venture), to your members (if you are a limited liability company), to a co -"employee" while in the course of his or her employment or performing duties related to the conduct of your business, or to your other "volunteer workers" while performing duties related to the conduct of your business; (b) To the spouse, child, parent, brother or sister of that co -"employee" or that "volunteer worker" as a consequence of Paragraph (1)(a) above; (c) For which there is any obligation to share damages with or repay someone else who must pay damages because of the injury described in Paragraphs (1)(a) or (1)(b) above; or (d) Arising out of his or her providing or failing to provide professional health care services. If you are not in the business of providing professional health care services: (a) Subparagraphs (1)(a), (1)(b) and (1)(c) above do not apply to any "employee" or "volunteer worker" providing first aid services; and (b) Subparagraph (1)(d) above does not apply to any nurse, emergency medical technician or paramedic employed by you to provide such services. (2) "Property damage" to property: (a) Owned, occupied or used by, (b) Rented to, in the care, custody or control of, or over which physical control is being exercised for any purpose by you, any of your "employees", "volunteer workers", any partner or member (if you are a partnership or joint venture), or any member (if you are a limited liability company). b. Real Estate Manager Any person (other than your "employee" or "volunteer worker"), or any organization while acting as your real estate manager. c. Temporary Custodians Of Your Property Any person or organization having proper temporary custody of your property if you die, but only: (1) With respect to liability arising out of the maintenance or use of that property; and (2) Until your legal representative has been appointed. d. Legal Representative If You Die Your legal representative if you die, but only HG 00 01 09 16 Page 11 of 21 50948.13 1 1091NKLBAR 1 •3. 20 19-20 33 & Baseline CASUALTY MASTER I Angela Garza 1 3/4/2019 10:22:07 AM iC["-i I Page 9 of 17 This certificate cancels and supersedes ALL previously issued certificates. with respect to duties as such. That 5. Additional Insureds When Required By representative will have all your rights and Written Contract, Written Agreement Or duties under this Coverage Part. Permit e. Unnamed Subsidiary The following person(s) or organization(s) are an Any subsidiary, and subsidiary thereof, of additional insured when you have agreed, in a yours which is a legally incorporated entity of written contract, written agreement or because of which you own a financial interest of more a permit issued by a state or political subdivision, than 50% of the voting stock on the effective that such person or organization be added as an date of the Coverage Part. additional insured on your policy, provided the The insurance afforded herein for any injury or damage occurs subsequent to the execution of the contract or agreement. subsidiary not named in this Coverage Part as a named insured does not apply to injury A person or organization is an additional insured or damage with respect to which such insured under this provision only for that period of time is also a named insured under another policy required by the contract or agreement. or would be a named insured under such However, no such person or organization is an policy but for its termination or the exhaustion insured under this provision if such person or of its limits of insurance. organization is included as an insured by an 3. Newly Acquired Or Formed Organization endorsement issued by us and made a part of this Coverage Part. Any organization you newly acquire or form, other than a partnership, joint venture or limited a. Vendors liability company, and over which you maintain Any person(s) or organization(s) (referred to financial interest of more than 50% of the voting below as vendor), but only with respect to stock, will qualify as a Named Insured if there is "bodily injury" or "property damage" arising no other similar insurance available to that out of "your products" which are distributed or organization. However: sold in the regular course of the vendor's a. Coverage under this provision is afforded only business and only if this Coverage Part until the 180th day after you acquire or form provides coverage for "bodily injury" or the organization or the end of the policy "property damage" included within the period, whichever is earlier; "products -completed operations hazard". b. Coverage A does not apply to "bodily injury" (1) The insurance afforded the vendor is or "property damage" that occurred before subject to the following additional you acquired or formed the organization; and exclusions: c. Coverage B does not apply to "personal and This insurance does not apply to: advertising injury" arising out of an offense (a) "Bodily injury" or "property damage" for committed before you acquired or formed the which the vendor is obligated to pay organization. damages by reason of the assumption 4. Nonowned Watercraft of liability in a contract or agreement. With respect to watercraft you do not own that is This exclusion does not apply to liability for damages that the vendor less than 51 feet long and is not being used to a would have in the absence of the carry persons for a charge, any person is an contract agreement; insured while operating such watercraft with your permission. Any other person or organization (b) Any express warranty unauthorized by responsible for the conduct of such person is you; also an insured, but only with respect to liability (c) Any physical or chemical change in the arising out of the operation of the watercraft, and product made intentionally by the only if no other insurance of any kind is available vendor; to that person or organization for this liability. (d) Repackaging, except when unpacked However, no person or organization is an insured solely for the purpose of inspection, with respect to: demonstration, testing, or the a. "Bodily injury" to a co -"employee" of the substitution of parts under instructions person operating the watercraft; or from the manufacturer, and then "Property Property damage to property owned by, repackaged in the original container; rented to, in the charge of or occupied by you (e) Any failure to make such inspections, or the employer of any person who is an adjustments, tests or servicing as the insured under this provision. vendor has agreed to make or normally Page 12 of 21 HG 00 01 09 16 50948613 1031NKLBAR 1 •3I20/19-20 39 6 Baseline CASUALTY WASTER I Angela Garza 1 9/4/2019 10:22:07 AM (CDT) I Page 10 o° 17 This certificate cancels and supersedes ALL previously issued certificates. undertakes to make in the usual course of business, in connection with the distribution or sale of the products; (f) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; (g) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or ingredient of any other thing or substance by or for the vendor; or (h) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (i) The exceptions contained in Sub- paragraphs (d) or (f); or (ii) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (2) This insurance does not apply to any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. b. Lessors Of Equipment (1) Any person(s) or organization(s) from whom you lease equipment; but only with respect to their liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your maintenance, operation or use of equipment leased to you by such person(s) or organization(s). (2) With respect to the insurance afforded to these additional insureds this insurance does not apply to any "occurrence" which takes place after the equipment lease expires. c. Lessors Of Land Or Premises Any person or organization from whom you lease land or premises, but only with respect to liability arising out of the ownership, maintenance or use of that part of the land or premises leased to you. With respect to the insurance afforded these additional insureds the following additional exclusions apply: This insurance does not apply to: 1. Any "occurrence" which takes place after you cease to lease that land; or 2. Structural alterations, new construction or demolition operations performed by or on behalf of such person or organization. d. Architects, Engineers Or Surveyors Any architect, engineer, or surveyor, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In connection with your premises; or (2) In the performance of your ongoing operations performed by you or on your behalf. With respect to the insurance afforded these additional insureds, the following additional exclusion applies: This insurance does not apply to "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services by or for you, including: 1. The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or 2. Supervisory, inspection, architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage", or the offense which caused the "personal and advertising injury", involved the rendering of or the failure to render any professional services by or for you. e. Permits Issued By State Or Political Subdivisions Any state or political subdivision, but only with respect to operations performed by you or on your behalf for which the state or political subdivision has issued a permit. With respect to the insurance afforded these additional insureds, this insurance does not apply to: (1) "Bodily injury", "property damage" or "personal and advertising injury" arising out of operations performed for the state or municipality; or HG 00 01 09 16 50948613 1031SKLBAR I •3/20/19-20 3B & Baseline CASUALTY MASTER I Angela Garza 19/4.2019 10:22:07 AM iCL`T, I page 11 of 17 This certificate cancels and supersedes ALL previously issued certificates. Page 13 of 21 (2) "Bodily injury" or "property damage" included within the "products -completed operations hazard". f. Any Other Party Any other person or organization who is not an additional insured under Paragraphs a. through e. above, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: (1) In the performance of your ongoing operations; (2) In connection with your premises owned by or rented to you; or (3) In connection with "your work" and included within the "products -completed operations hazard", but only if (a) The written contract or agreement requires you to provide such coverage to such additional insured; and (b) This Coverage Part provides coverage for "bodily injury" or "property damage" included within the "products - completed operations hazard". However: (1) The insurance afforded to such additional insured only applies to the extent permitted by law; and (2) If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. With respect to the insurance afforded to these additional insureds, this insurance does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of, or the failure to render, any professional architectural, engineering or surveying services, including: (1) The preparing, approving, or failing to prepare or approve, maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; or (2) Supervisory, inspection, architectural or engineering activities. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage", or the offense which caused the "personal and advertising injury", involved the rendering of or the failure to render any professional services by or for you. The limits of insurance that apply to additional insureds is described in Section III — Limits Of Insurance. How this insurance applies when other insurance is available to the additional insured is described in the Other Insurance Condition in Section IV — Commercial General Liability Conditions. No person or organization is an insured with respect to the conduct of any current or past partnership, joint venture or limited liability company that is not shown as a Named Insured in the Declarations. SECTION III — LIMITS OF INSURANCE 1. The Most We Will Pay The Limits of Insurance shown in the Declarations and the rules below fix the most we will pay regardless of the number of: a. Insureds; b. Claims made or "suits" brought; or c. Persons or organizations making claims or bringing "suits". 2. General Aggregate Limit The General Aggregate Limit is the most we will pay for the sum of: a. Medical expenses under Coverage C; b. Damages under Coverage A, except damages because of "bodily injury" or "property damage" included in the "products - completed operations hazard'; and c. Damages under Coverage B. 3. Products -Completed Operations Aggregate Limit The Products -Completed Operations Aggregate Limit is the most we will pay under Coverage A for damages because of "bodily injury" and .'property damage" included in the "products - completed operations hazard". 4. Personal And Advertising Injury Limit Subject to 2. above, the Personal and Advertising Injury Limit is the most we will pay under Coverage B for the sum of all damages because of all "personal and advertising injury" sustained by any one person or organization. 5. Each Occurrence Limit Subject to 2. or 3. above, whichever applies, the Each Occurrence Limit is the most we will pay for the sum of: a. Damages under Coverage A; and Page 14 of 21 HG 00 01 09 16 S0948f13 1103INKLBAR 1 •3/20/19-20 33 S Baseline CASUALTY MASTER I Angela Garza 1 9/4/2019 10:22:07 AM �MC-­ I Page 12 of 17 This certificate cancels and supersedes ALL previously issued certificates. contract or written agreement that this insurance is primary and non-contributory with the additional insured's own insurance. f. Knowledge Of An Occurrence, Offense, Claim Or Suit Paragraphs a. and b. apply to you or to any additional insured only when such "occurrence", offense, claim or "suit" is known to: (1) You or any additional insured that is an individual; (2) Any partner, if you or the additional insured is a partnership; (3) Any manager, if you or the additional insured is a limited liability company; (4) Any "executive officer" or insurance manager, if you or the additional insured is a corporation; (5) Any trustee, if you or the additional insured is a trust; or (6) Any elected or appointed official, if you or the additional insured is a political subdivision or public entity. This duty applies separately to you and any additional insured. 3. Legal Action Against Us No person or organization has a right under this Coverage Part: a. To join us as a party or otherwise bring us into a "suit" asking for damages from an insured; or b. To sue us on this Coverage Part unless all of its terms have been fully complied with. A person or organization may sue us to recover on an agreed settlement or on a final judgment against an insured; but we will not be liable for damages that are not payable under the terms of this Coverage Part or that are in excess of the applicable limit of insurance. An agreed settlement means a settlement and release of liability signed by us, the insured and the claimant or the claimant's legal representative. 4. Other Insurance If other valid and collectible insurance is available to the insured for a loss we cover under Coverages A or B of this Coverage Part, our obligations are limited as follows: a. Primary Insurance This insurance is primary except when b. below applies. If other insurance is also primary, we will share with all that other insurance by the method described in c. below. b. Excess Insurance This insurance is excess over any of the other insurance, whether primary, excess, contingent or on any other basis: (1) Your Work That is Fire, Extended Coverage, Builder's Risk, Installation Risk or similar coverage for "your work'; (2) Premises Rented To You That is fire, lightning or explosion insurance for premises rented to you or temporarily occupied by you with permission of the owner; (3) Tenant Liability That is insurance purchased by you to cover your liability as a tenant for "property damage" to premises rented to you or temporarily occupied by you with permission of the owner; (4) Aircraft, Auto Or Watercraft If the loss arises out of the maintenance or use of aircraft, "autos" or watercraft to the extent not subject to Exclusion g. of Section I — Coverage A — Bodily Injury And Property Damage Liability; (5) Property Damage To Borrowed Equipment Or Use Of Elevators If the loss arises out of "property damage" to borrowed equipment or the use of elevators to the extent not subject to Exclusion j. of Section I - Coverage A - Bodily Injury And Property Damage Liability; (6) When You Are Added As An Additional Insured To Other Insurance Any other insurance available to you covering liability for damages arising out of the premises or operations, or products and completed operations, for which you have been added as an additional insured by that insurance; or (7) When You Add Others As An Additional Insured To This Insurance Any other insurance available to an additional insured. However, the following provisions apply to other insurance available to any person or organization who is an additional insured under this coverage part. (a) Primary Insurance When Required By Contract This insurance is primary if you have agreed in a written contract or written agreement that this insurance be primary. If other insurance is also Page 16 of 21 HG 00 0109 16 50948.13 1031NKLBAR 1 •3. 20. 19-20 B3 & Baseline CASUALTY MASTER I Angela Garza 1 3.'4 2J19 10:22:07 AM iCDT: I Paje 13 of 17 This certificate cancels and supersedes ALL previously issued certificates. primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement, or permit that this insurance is primary and non- contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self -insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the first Named Insured. c. The first Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business that exist at the inception date of this Coverage Part, we shall not deny coverage under this Coverage Part because of such failure. 7. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom claim is made or "suit" is brought. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to HG 00 01 09 16 Page 17 of 21 509486/3 1 10?-NKLBAR 1 •3. 20 19-20 BB & Baseline CASUALTY MASTER I Angela Garza 1 9/4 2019 10:22:07 AM ICGTI I Page 14 of 17 This certificate cancels and supersedes ALL previously issued certificates. primary, we will share with all that other insurance by the method described in c. below. (b) Primary And Non -Contributory To Other Insurance When Required By Contract If you have agreed in a written contract, written agreement, or permit that this insurance is primary and non- contributory with the additional insured's own insurance, this insurance is primary and we will not seek contribution from that other insurance. Paragraphs (a) and (b) do not apply to other insurance to which the additional insured has been added as an additional insured. When this insurance is excess, we will have no duty under Coverages A or B to defend the insured against any "suit" if any other insurer has a duty to defend the insured against that "suit". If no other insurer defends, we will undertake to do so, but we will be entitled to the insured's rights against all those other insurers. When this insurance is excess over other insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of: (1) The total amount that all such other insurance would pay for the loss in the absence of this insurance; and (2) The total of all deductible and self -insured amounts under all that other insurance. We will share the remaining loss, if any, with any other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. c. Method Of Sharing If all of the other insurance permits contribution by equal shares, we will follow this method also. Under this approach each insurer contributes equal amounts until it has paid its applicable limit of insurance or none of the loss remains, whichever comes first. If any of the other insurance does not permit contribution by equal shares, we will contribute by limits. Under this method, each insurer's share is based on the ratio of its applicable limit of insurance to the total applicable limits of insurance of all insurers. 5. Premium Audit a. We will compute all premiums for this Coverage Part in accordance with our rules and rates. b. Premium shown in this Coverage Part as advance premium is a deposit premium only. At the close of each audit period we will compute the earned premium for that period and send notice to the first Named Insured. The due date for audit and retrospective premiums is the date shown as the due date on the bill. If the sum of the advance and audit premiums paid for the policy period is greater than the earned premium, we will return the excess to the first Named Insured. c. The first Named Insured must keep records of the information we need for premium computation, and send us copies at such times as we may request. 6. Representations a. When You Accept This Policy By accepting this policy, you agree: (1) The statements in the Declarations are accurate and complete; (2) Those statements are based upon representations you made to us; and (3) We have issued this policy in reliance upon your representations. b. Unintentional Failure To Disclose Hazards If unintentionally you should fail to disclose all hazards relating to the conduct of your business that exist at the inception date of this Coverage Part, we shall not deny coverage under this Coverage Part because of such failure. 7. Separation Of Insureds Except with respect to the Limits of Insurance, and any rights or duties specifically assigned in this Coverage Part to the first Named Insured, this insurance applies: a. As if each Named Insured were the only Named Insured; and b. Separately to each insured against whom claim is made or "suit" is brought. 8. Transfer Of Rights Of Recovery Against Others To Us a. Transfer Of Rights Of Recovery If the insured has rights to recover all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to HG 00 0109 16 Page 17 of 21 50948613 1 lOBINKLBAR i •3/20,19-20 BB & Baseline CASUALTY MASTER I Angela Garza 1 9/4/2019 10:22:07 AM (CDT) I Page 15 of 17 This certificate cancels and supersedes ALL previously issued certificates. impair them. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. b. Waiver Of Rights Of Recovery (Waiver Of Subrogation) If the insured has waived any rights of recovery against any person or organization for all or part of any payment, including Supplementary Payments, we have made under this Coverage Part, we also waive that right, provided the insured waived their rights of recovery against such person or organization in a contract, agreement or permit that was executed prior to the injury or damage. 9. When We Do Not Renew If we decide not to renew this Coverage Part, we will mail or deliver to the first Named Insured shown in the Declarations written notice of the nonrenewal not less than 30 days before the expiration date. If notice is mailed, proof of mailing will be sufficient proof of notice. SECTION V — DEFINITIONS 1. "Advertisement" means the widespread public dissemination of information or images that has the purpose of inducing the sale of goods, products or services through: a. (1) Radio; (2) Television; (3) Billboard; (4) Magazine; (5) Newspaper; or b. Any other publication that is given widespread public distribution. However, "advertisement" does not include: a. The design, printed material, information or images contained in, on or upon the packaging or labeling of any goods or products; or b. An interactive conversation between or among persons through a computer network. 2. "Advertising idea" means any idea for an "advertisement". 3. "Asbestos hazard" means an exposure or threat of exposure to the actual or alleged properties of asbestos and includes the mere presence of asbestos in any form. 4. "Auto" means: a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged. However, "auto" does not include "mobile equipment". 5. "Bodily injury" means physical: a. Injury; b. Sickness; or c. Disease sustained by a person and, if arising out of the above, mental anguish or death at any time. 6. "Coverage territory" means: a. The United States of America (including its territories and possessions), Puerto Rico and Canada; b. International waters or airspace, but only if the injury or damage occurs in the course of travel or transportation between any places included in a. above; or c. All other parts of the world if the injury or damage arises out of: (1) Goods or products made or sold by you in the territory described in a. above; (2) The activities of a person whose home is in the territory described in a. above, but is away for a short time on your business; or (3) "Personal and advertising injury" offenses that take place through the Internet or similar electronic means of communication provided the insured's responsibility to pay damages is determined in the United States of America (including its territories and possessions), Puerto Rico or Canada, in a "suit" on the merits according to the substantive law in such territory or in a settlement we agree to. 7. "Employee" includes a "leased worker". "Employee" does not include a "temporary worker". 8. "Employment -Related Practices" means: a. Refusal to employ that person; b. Termination of that person's employment; or c. Employment -related practices, policies, acts or omissions, such as coercion, demotion, evaluation, reassignment, discipline, defamation, harassment, humiliation, discrimination or malicious prosecution directed at that person. 9. "Executive officer" means a person holding any of the officer positions created by your charter, constitution, by-laws or any other similar governing document. 10. "Hostile fire" means one which becomes uncontrollable or breaks out from where it was intended to be. Page 18 of 21 HG 00 01 0916 50948-13 1 303I:1KLBAR 1 •3/20/19-20 33 6 Baseline CASUALTY (ASTER I Angela Garza 1 9/4/2019 10:22:07 AM ICDT) I Page 16 of 17 This certificate cancels and supersedes ALL previously issued certificates. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TEXAS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT Policy Number: Endorsement Number: Effective Date: 03/20/2019 Effective hour is the same as stated on the Information Page of the policy. Named Insured and Address: Binkle& Barfield, Inc. 1710 Lamist Drive Houston TX 77008 This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of the Information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule, but this waiver applies only with respect to bodily injury arising out of the operations described in the Schedule where you are required by a written contract to obtain this waiver from us. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. Schedule 1. () Special Waiver Name of person or organization (X) Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. 2. Operations: All Texas Operations 3. Premium: The premium charge for this endorsement shall be 2 percent of the premium developed on payroll in connection with work performed for the above person(s) or organization(s) arising out of the operations described. 4. Advance Premium: Form WC 42 03 04 B Printed in U.S.A. Process Date: Policy Expiration Dat%3;20i2020 50948.13 1 103INRLBAP. 1 •3/20/19-20 BB S Baseline CASUALTY MASTER I Angela Garza 1 9/4/2019 10:22:07 AM (CDT) I Pa3e 17 of 17 This certificate cancels and supersedes ALL previously issued certificates.