Ordinance No. 7,249950309 -4
ORDINANCE NO. 7249
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN
APPROVING AND AUTHORIZING THE EXECUTION OF AN ENGINEERING
AGREEMENT BETWEEN BAYTOWN AREA WATER AUTHORITY AND WAYNE
SMITH & ASSOCIATES, INC.; 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 approves and authorizes the execution of an
Engineering Agreement between Baytown Area Water Authority and
Wayne Smith & Associates, Inc. A copy of said agreement is
attached hereto, marked Exhibit "A, " and made a part hereof for all
intents and purposes.
Section 2: This ordinance shall take effect immediately from
and after its passage by the City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the
City Council of the City of Baytown this the 9th day of March,
1995.
da
PETE C. AfFARO, Mayor
ATTEST:
E LEE�f P. HALL, City Clerk
APPROVED AS TO FORM:
4AZC'I'1'RAMIREZ, S . City Attorney
• legal / council /nLuch/3- 9- 95authAGREEMENTsmith
• AGREEMENT
BETWEEN
OWNER AND ENGINEER
Vt9
PROFESSIONAL SERVICES
The State of Texas <
Know All Men by These Presents:
County of Harris <
THIS IS AN AGREEMENT MADE AS OF the day of in the
year of Nineteen Hundred and Ninety Four by and between the
Baytown Area Water Authority (hereinafter called OWNER) and Wayne
Smith & Associates, Inc. (hereinafter called Consulting ENGINEER) .
OWNER intends to retain the services of the ENGINEER for services
that may be required by the OWNER within the jurisdiction of the
Baytown Area Water Authority, including, but not limited to, public
works improvements as found necessary (hereinafter called the
Project).
OWNER AND ENGINEER in consideration of their mutual covenants
herein agree in respect of the performance of professional
engineering services by ENGINEER and the payment for those
services by OWNER, as set forth below.
ENGINEER shall serve as OWNER'S professional engineering
• representative in those phases of the Project as assigned by OWNER
EXHIBIT A
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The OWNER, jointly and severally, and the ENGINEER, jointly and
severally, bind themselves to faithfully and fully execute and
perform all of the duties and obligations hereof respectively as
OWNER and ENGINEER.
The authorized representative of the ENGINEER in all matters
pertaining to this Contract Document shall be as designated by the
President of Wayne Smith & Associates, Inc., R. Wayne Smith. The
authorized representative for the OWNER shall be as designated by
the Manager.
SECTION 1 - BASIC SERVICES OF ENGINEER
1.1 General
1.1.1 ENGINEER shall perform professional
hereinafter stated which include normal civil,
mechanical, and electrical engineering services
architectural services incidental thereto.
services as
structural,
and normal
1.1.2 Advise OWNER of need for services of subcontractors for
performance of special services, as required from time to time
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and accepted
by ENGINEER, and
will give consultation and advice to
Owner during
the performance
of his services.
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The OWNER, jointly and severally, and the ENGINEER, jointly and
severally, bind themselves to faithfully and fully execute and
perform all of the duties and obligations hereof respectively as
OWNER and ENGINEER.
The authorized representative of the ENGINEER in all matters
pertaining to this Contract Document shall be as designated by the
President of Wayne Smith & Associates, Inc., R. Wayne Smith. The
authorized representative for the OWNER shall be as designated by
the Manager.
SECTION 1 - BASIC SERVICES OF ENGINEER
1.1 General
1.1.1 ENGINEER shall perform professional
hereinafter stated which include normal civil,
mechanical, and electrical engineering services
architectural services incidental thereto.
services as
structural,
and normal
1.1.2 Advise OWNER of need for services of subcontractors for
performance of special services, as required from time to time
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• during the Project; he shall detail these needs and present
proposals thereon to the OWNER for approval.
1.2 Preliminary Phase. After written authorization to proceed,
ENGINEER shall:
1.2.1 Consult with OWNER to determine his requirements for the
Project and review available data.
1.2.2 Attend preliminary conference with the OWNER and other
interested parties regarding the Project.
1.2.3 Prepare a preliminary engineering study and report on the
Project in sufficient detail to indicate generally the problems
involved and the alternate solutions available to the OWNER, to
include preliminary layouts, and cost estimates for the Project,
and to set forth clearly the ENGINEER'S recommendations.
1.2.4 Review reports of previous engineering studies made for
the OWNER pertaining to this Project, collect other relevant data
including existing facilities. ENGINEER shall analyze such data
and OWNER'S needs and shall generate alternative plans to
physically satisfy the OWNER'S needs. Detailed cost analysis
shall be made of each alternative and benefits analyzed and
quantified where practical. A report of these studies and the
ENGINEER'S recommendations thereon shall be prepared. The
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• ENGINEER will furnish sufficient copies of the report, present,
and review it in person with the OWNER.
1.3 Design Phase. After written authorization to proceed with
the design phase, ENGINEER shall:
1.3.1 On the basis of the accepted preliminary documents prepare
for incorporation in the contract documents, final drawings to show
the character and scope of the work to be performed by contractors
on the Project and specifications.
1.3.2 Establish the scope of any soil and foundation
investigations or any special surveys and tests which, in the
opinion of the ENGINEER, may be required for design; arrange for
such work to be done for the OWNER'S account.
1.3.3 Furnish to the OWNER, where required by the circumstances
of the assignment, the engineering data necessary for applications
for routine permits by local, state, and federal authorities (as
distinguished from detailed applications and supporting documents
for government grants --in-aid, or for planning advances).
1.3.4 Prepare detailed specifications and contract drawings, in
pencil or ink on paper or plastic film, for construction authorized
by the OWNER.
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• 1.3.5 Prepare detailed cost estimates of authorized
construction. The ENGINEER shall not be required to guarantee the
accuracy of these estimates.
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1.3.5 Furnish to the OWNER all necessary copies of approved
plans, specifications, notices to bidders, and proposal forms.
All sets of plans in excess of agreed number are to be paid for
separately.
1.4 Construction Phase. After written authorization to proceed
with the construction phase, ENGINEER shall:
1.4.1 Assist the OWNER in the advertisements of the Project for
bids.
1.4.2 ENGINEER shall furnish all documents sufficient to
facilitate the bid process.
1.4.3 Consult with and advise OWNER as to the acceptability of
subcontractors and other persons and organizations proposed by the
prime Contractor(s) [hereinafter called "Contractor(s) "] for those
portions of the work as to which such acceptability is required by
the contract documents.
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1.4.4 Consult with and advise OWNER as to the acceptability of
substitute materials and equipment proposed by Contractor(s) when
substitution is permitted by the contract documents.
1.4.5 Assist OWNER in evaluating bids or proposals and in
assembling and awarding contracts. ENGINEER shall prepare a
detailed bid tabulation, including bid analysis, research of
Contractor's qualifications, and a recommendation.
1.4.6 Consult with and advise OWNER and act as his
representative as provided in the Standard General Conditions of
the Construction Contract, the extent and limitations of the
duties, responsibilities and authority of ENGINEER as assigned in
said Standard General Conditions shall not be modified without
ENGINEER'S written consent; all of OWNER'S instructions to
Contractor(s) will be issued through ENGINEER who will have
authority to act on behalf of OWNER to the extent provided in said
Standard General Conditions except as otherwise provided in
writing.
1.4.7 Make periodic visits as required by the OWNER to the site
to observe, as an experienced and qualified design professional,
the progress and quality of the executed work and to determine in
general if the work is proceeding in accordance with the contract
documents; he shall not be required to make exhaustive or
continuous onsite inspections to check the quality or quantity of
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techniques, sequences or procedures of construction selected by
Contractors) or the safety precautions and programs incidental to
the work of Contractor(s). His efforts will be directed toward
providing assurance for OWNER that the completed Project will
conform to the Contract Documents, but he shall not be responsible
for the failure of Contractor(s) to perform the construction work
in accordance with the contract documents. During such visits and
on the basis of his onsite observations he shall keep OWNER
informed of the progress of the work, shall endeavor to guard OWNER
against defects and deficiencies in the work of Contractor(s) and
may disapprove or reject work as failing to conform to the contract
documents. ENGINEER shall attend all City meetings as required
during the construction phase.
1.4.8 Review and approve shop drawings (as that term is defined
in the Standard General Conditions) and samples, the results of
tests and inspections and other data which any Contractor is
required to submit, but only for conformance with the design
concept of the Project and compliance with the information given
in the contract documents; determine the acceptability of
substitute materials and equipment proposed by Contractor(s); and
receive and review (for general content as required by the
specifications) maintenance and operating instructions, schedules,
guarantees, bonds, and certificates of inspection which are to be
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• assembled by Contractor(s) in accordance with the contract
documents.
1.4.9 Issue all instruction of OWNER to Contractor(s); prepare
routine change orders as required; he may, as OWNER'S
representative, require special inspection or testing of the work;
he shall act as interpreter of the requirements of the contract
documents and judge of the performance thereunder by the parties
thereto and shall make decisions on all claims of OWNER and
Contractor(s) relating to the execution and progress of the work
and all other matters and questions related thereto; but ENGINEER
shall not be liable for the results of any such interpretations or
decisions rendered by him in accordance with accepted engineering
practices, procedures, and design criteria.
1.4.10 Based on his onsite observations as an experienced and
qualified design professional and on his review of Contractor(s)
applications for payment and the accompanying data and schedules,
determine the amounts owing to Contractor(s) and approve in
writing payments to Contractor(s) in such amounts; such approvals
of payment will constitute a representation to OWNER, based on
such observation and review, that the work has progressed to the
point indicated and that, to the best of his knowledge,
information and belief, the quality of the work is in accordance
with the contract documents (subject to the evaluation of the work
as a functioning Project upon substantial completion, to the
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• results of any subsequent tests called for in the contract
documents, and to any qualifications stated in his approval), but
by approving an application for payment ENGINEER will not be
deemed to have represented that he has made any examination to
determine how or for what purposes any Contractor has used the
moneys paid on account of the contract price, or that title to any
of the Contractor(s) work, materials or equipment has passed to
OWNER free and clear of any lien, claims, security interests or
encumbrances.
1.4.11 Provide, from the field prints maintained by the
ENGINEER'S resident, one set of record drawings. These shall be
reproducibles and shall be delivered within three months of
completion of last construction contract.
1.4.12 Conduct an inspection to determine if the Project is
substantially complete and final inspection to determine if the
Project has been completed in accordance with the contract
documents and if each Contractor(s) has fulfilled all of his
obligations thereunder so that ENGINEER may approve, in writing,
final payment to each contractor.
1.4.13 Provide services after completion of the construction
phase, such as inspections during any guaranteed period and
reporting observed discrepancies under guarantees called for in any
• contract for the Project.
• 1.4.14 ENGINEER shall act as the OWNER'S agent in obtaining
necessary routine approvals and routine permits from all
governmental authorities having jurisdiction over the Project and
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such approvals and consents from others as may be necessary for
completion of the Project. Routine permits include items such as
highway or road crossings but do not include items requiring
services in addition to design, such as Waste Discharge Permit,
Corps of Engineers Permit, Environmental Impact Statements, et
cetera.
SECTION 2 - ADDITIONAD SERVICES OF ENGINEER
2.1 General. If authorized in writing in separate instrument,
by OWNER, ENGINEER shall furnish or obtain from others, additional
services of the following types which are not
considered normal or customary basic services; these will be
additionally paid for by OWNER as indicated in Section 5.
2.1.1 Services resulting from significant changes in general
scope of the Project or its design including, but not limited to,
changes in size, complexity, OWNER'S schedule, or character of
construction; and revising previously accepted studies, reports,
design documents or contract documents when such revisions are due
to causes beyond ENGINEER'S control.
2.1.2 Provide renderings or models for OWNER'S use.
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• 2.1.3 Preparing documents for alternate bids requested by OWNER
for work which is not executed or documents for out -of- sequence
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work.
2.1.4 Investigations involving detailed consideration of
operations, maintenance, and overhead expenses; and the
preparation of rate schedules, earnings and expense statements,
feasibility studies, appraisals, and valuations; detailed quantity
surveys of material, equipment and labor; and audits or
inventories required in connection with construction performance
by OWNER.
2.1.5 Furnishing the services of special consultants for other
than the normal civil, structural, mechanical and electrical
engineering and normal architectural design incidental thereto
such as consultants for interior design, selection of furniture
and furnishings, communications, (excluding instrumenting
incidental to Project), acoustics, kitchens, and landscaping.
2.1.6 Services resulting from the involvement of more separate
prime contract for construction or for equipment than are
contemplated.
2.1.7 Services in connection with change orders to reflect
changes requested by OWNER if the resulting change in compensation
for basic services is not commensurate with the additional services
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• rendered, and services resulting from significant delays; changes
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or price increases occurring as a direct or indirect result of
material, equipment or energy shortages.
2.1.8 Services during out -of -town travel required of ENGINEER
other than visits to the Project site as required by Section 1 or
the state agencies to solicit permits.
2.1.9 Additional or extended services during construction made
necessary by (1) work damaged by fire or other cause during
construction, (2) a significant amount of defective or neglected
work of any Contractor, (3) prolongation of the contract time of
any prime Contractor by more than sixty days, (4) acceleration of
the work schedule involving services beyond normal working hours,
and (5) default by any Contractor. The cost for these services
will be negotiated should the need arise.
2.1.10 Preparing to serve or serving as a consultant or witness
for OWNER in any litigation.
2.1.11 Additional services in connection with the Project,
including services normally furnished by OWNER and services not
otherwise provided for in this Agreement.
2.1.12 Services as right -of -way agent for the OWNER.
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• 2.1.13 Services, furnished by others on a subcontract basis to
the ENGINEER, by subcontract; subject to prior approval of the
OWNER.
2.1.13.1 The services of a Registered Public Surveyor for
property, boundary, easement, right -of -way, topographic, control
points, and utility surveys and property descriptions.
2.1.13.2 Materials testing services, in one or more
subcontractors.
2.1.13.3 Professional interpretations of the material testing
results.
2.1.14 Title search services.
2.2 Resident services during construction.
2.2.1 If requested by OWNER or recommended by ENGINEER and
agreed to in writing by the other, a Resident Project
Representative and assistants will be furnished and will act as
directed by ENGINEER in order to provide more extensive
representation at the Project site during the construction phase.
Such services will be paid for by OWNER as indicated in paragraph
5.1.4.4.
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. 2.2.2 The duties and responsibilities and the limitations on the
authority of the Resident Project Representative and assistants
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will be set forth in Exhibit A which is to be identified, attached
to and made a part of this Agreement before such services begin.
2.2.3 Through more extensive onsite observations of the work in
progress and field check of materials and equipment by the
Resident Project Representative (if furnished) and assistants,
ENGINEER shall endeavor to provide further protection for OWNER
against defects and deficiencies in the work, but the furnishing
of such Resident Project Representation will not make ENGINEER
responsible for construction means, methods, techniques, sequences
or procedures or for safety precautions or programs, or for
Contractor(s) failure to perform the construction work in
accordance with the contract documents.
2.2.4 The Resident ENGINEER and any assistants shall be subject
to approval by the OWNER and subject to an interview with OWNER'S
representative for determination of qualifications. The OWNER
shall have! the right to order removal of an ENGINEER representative
from the work for stated cause provided one week's notice is
given.
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• SECTION 3 - OWNER'S RESPONSIBILITIES
3.1 Provide full information as to his requirements for the
Project.
3.2 Assist ENGINEER by placing at his disposal all available
information pertinent to the Project including previous reports
and any other data relative to design and construction of the
Project.
3.3 Guarantee access to and make all provisions for ENGINEER to
enter upon public and private property as required for ENGINEER to
perform his services.
3.4 Examine all studies, reports, sketches, drawings,
specifications, proposals and other documents presented by
ENGINEER, obtain advice of an attorney, insurance counselor and
other consultants as he deems appropriate for such examination
and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of ENGINEER.
3.5 Provide such legal, accounting, independent cost estimating
and insurance counseling services as may be required for the
Project, and such auditing service as OWNER may require to
ascertain how or for what purpose any Contractor has used the
moneys paid to him under the construction contract and render in
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0 writing decisions pertaining thereto within a reasonable time so
as not to delay the services of ENGINEER.
3.6 Designate in writing a person to act as OWNER'S
representative with respect to the work to be performed under this
Agreement. Such person shall have complete authority to transmit
instructions, receive information, interpret and define OWNER'S
policies and decisions with respect to materials, equipment,
elements and systems pertinent to ENGINEER'S services.
3.7 Furnish, or direct ENGINEER to provide, necessary additional
services as stipulated in Section 2 of this Agreement or other
services as required.
3.8 Bear all costs incident to compliance with the requirements
of this Section 3.
SECTION 4 - PERIOD OF SERVICE
4.1 The provisions of 4.2 through 4.8, inclusive, and the
various rates of compensation for ENGINEER'S services provided for
elsewhere in this Agreement have been agreed to in anticipation of
the orderly and continuous progress of the Project through
completion of the construction phase. ENGINEER'S obligation to
render services hereunder will extend for a period which may
reasonably be required for the design, award of contracts and
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construction of the Project including extra work and required
extensions thereto.
4.2 The services called for in the preliminary phase will be
completed and the report submitted within a reasonable time
following the authorization to proceed with that phase of
services.
4.3 After acceptance by OWNER of the preliminary documents and
revised opinion of probable Project cost, indicating any specific
modifications of changes in scope desired by OWNER, and upon
written authorization from OWNER, ENGINEER shall proceed with the
performance of the service called for in the design phase, so as
to deliver contract documents and a revised opinion of probable
Project cost for all authorized work on the Project within a
reasonable time after the authorization to proceed with that phase
of services.
4.4 ENGINEER'S services under the preliminary phase and design
phase shall each be considered complete when the submissions for
that phase have been accepted by OWNER.
4.5 After acceptance by OWNER of the contract documents and
ENGINEER'S most recent opinion of probable Project cost and upon
written authorization to proceed, ENGINEER shall proceed with
performance of the services called for in the construction phase.
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The design phase shall terminate and the services to be rendered
thereunder shall be considered complete upon commencement of the
construction phase or upon cessation of negotiations with
Contractor(s).
4.6 The construction phase will commence with the advertisement
of the Project or any part thereof, and will terminate upon
written approval by ENGINEER of final payment on the last prime
contract to be completed. Construction phase services may be
rendered at different times in respect of separate prime contracts
if the Project involves more than one prime contract.
4.7 In the event that the work of the Project is to be performed
under more than one prime contract, OWNER and ENGINEER shall, prior
to commencement of the design phase, develop a schedule for
performance of ENGINEER'S services during the design and
construction phases in order to sequence and coordinate properly
such services as applicable to the work under such separate
contracts. This schedule is to be prepared whether or not the work
under such contracts is to proceed concurrently.
4.8 If OWNER has requested significant modifications or changes
in the scope of the Project, the time of performance of ENGINEER'S
services shall be adjusted appropriately.
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• 4.9 If OWNER fails to give prompt written authorization to
proceed with any phase of services after completion of the
immediately preceding phase, or if the construction phase has not
commenced within sixty calendar days after completion of the
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design phase, ENGINEER may, after giving seven days notice to
OWNER, suspend services under this Agreement.
4.10 If ENGINEER'S services for design or during construction of
the Project are delayed or suspended in whole or in part by Owner
for more than three months for reasons beyond ENGINEER'S control,
ENGINEER shall on written demand to OWNER (but without termination
of this Agreement) be paid as provided in paragraph 5.1.2 for
services delayed or suspended. If such delay or suspension
extends for more than one year for reasons beyond ENGINEER'S
control, or if ENGINEER for any reason is required to render
services more than one year after substantial completion, the
various rates of compensation provided for elsewhere in this
Agreement shall be subject to renegotiation.
SECTION 5 - PAYMENTS TO ENGINEER
5.1 Compensation for all services by the ENGINEER shall be in
accordance with one of the methods outlined below and specifically
noted in each written assignment detailed in accordance with this
agreement.
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. 5.1.1 Percentage of Construction
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5.1.1.1 In this method of arriving at the ENGINEER'S
compensation the applicable compensation tables (with notes
applicable thereto) shall be used as a guide which shall be
detailed for a specific assignment. Tables for "A" and "B" are
attached.
5.1.1.2 When the entire Project is awarded on the basis of
multiple contracts, applicable fee curves, fee tables, and curve
adjustments for additional services for entire Project may be
negotiated. Both parties recognize that it may be advantageous to
divide the Project into two or more parts for bidding
construction.
5.1.2 Salary cost times a multiplier plus direct non - salary
expenses.
5.1.2.1 In this method of arriving at the ENGINEER'S
compensation, the salaries to be used shall be the current hourly
salary of the individual(s) engaged in performing the service for
the OWNER.
5.1.2.2 The total compensation under this method shall be the
product of the salary cost in performing the service for the OWNER
times 2.35 multiplier.
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• 5.1.2.3 Direct non - salary expenses such as travel, subsistence,
materials purchased, tests required, and special miscellaneous
needs shall be invoiced at cost times a multiplier of 1.10.
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5.1.3 Lump Sum Charge
5.1.3.1 This method of arriving at the ENGINEER'S compensation
may be used where it is possible to define with reasonable
accuracy the scope of the work to be performed.
5.1.3.2 The lump sum is determined by mutual agreement. This
approach is justified only on design type Project of conventional
characteristics with very defined scope.
5.1.4 Additional Services. OWNER shall pay ENGINEER for
additional services rendered under Section 2 as follows:
5.1.4.1 General. For additional services rendered under
paragraphs 2.1.1 through 2.1.14, inclusive (except services
covered by paragraph 2.1.5 and services as a consultant of witness
under paragraph 2.1.10, on the basis of salary) cost times a factor
of 2.35 for services rendered by principal and employees assigned
to the Project.
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• 5.1.4.2 Special consultants. For services and reimbursable
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expenses of special consultants and subcontractors (surveyors,
testing labs) employed by ENGINEER pursuant to paragraph 2.1.5 or
2.1.14, the amount billed to ENGINEER therefore times a factor of
1.10.
5.1.4.3 Serving as a witness. For the services of the principal
and employees as consultants or witnesses in any litigation,
hearing or proceeding in accordance with paragraph 2.1.10, at the
rate of $800 per day or any portion thereof (but compensation for
time spent in preparing to appear in any such litigation, hearing
or proceeding will be on the basis provided in paragraph 5.1.4.1).
5.1.4.4 Resident project services. For resident services during
construction furnished under paragraph 2.2.1, on the basis of
salary costs times a factor of 2.15 for services rendered by
principals and employees assigned to field offices in connection
with Resident Project Representation.
5.1.5 Reimbursable expenses. In addition to payments provided
for in paragraph 5.1.4, OWNER shall pay ENGINEER the actual costs
of all reimbursable expenses incurred in connection with all
additional services except those services provided in 5.1.4.4.
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• 5.1.6 As used in this paragraph 5. 1, the terms "construction
cost ", "salary costs" and "reimbursable expenses" will have the
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meanings assigned to them in paragraphs 5.3.1, 5.3.2, and 5.3.3.
5.2 Times of Payment.
5.2.1 ENGINEER shall submit monthly statements for basic and
additional services rendered and for reimbursable expenses
incurred. When compensation is on the basis of a lump sum or
percentage of construction cost, the statements will be based upon
ENGINEER'S estimate of the proportion of the total services
actually completed at the time of billing. Otherwise, these
monthly statements will be based upon ENGINEER'S salary cost times
a factor. OWNER shall make monthly payments within thirty days in
response to ENGINEER'S monthly statements.
5.2.2 Where compensation for basic services is on the basis of
a lump sum or percentage of construction cost, OWNER shall, upon
conclusion of each phase of basic services, pay such additional
amount, if any, as may be necessary to bring total compensation
paid on account of such phase to the following percentages of
total compensation for all phases of basic services. Of the total
fees due, the percentages to be paid under the various phases of
work are as follows: preliminary phase fifteen percent, design
phase sixty -five percent, and construction phase twenty percent.
The OWNER shall approve invoices on a monthly basis for work
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• performed under the basic service fee and also for special
services rendered. The OWNER will pay monthly invoices within
thirty days as submitted by the ENGINEER in accordance with this
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Agreement.
5.3 General
5.3.1 The construction cost of the entire Project (herein
referred to as "construction cost") means the total cost of the
entire Project to OWNER, but it will not include ENGINEER'S
compensation and expenses, the cost of land, rights -of -way, or
compensation for or damages to properties unless this Agreement so
specifies, nor will it include OWNER'S legal, accounting,
insurance counseling or auditing services, or interest and
financing charges incurred in connection with the Project. When
construction cost is used as a basis for payment, it will be based
on one of the following sources with precedence in the order
listed:
5.3.1.1 For completed construction, the total cost of all work
performed (excluding work by OWNER) as designed or specified by
ENGINEER.
5.3.1.2 For work not constructed, the lowest bona fide bid
received from a qualified bidder for such work; or if the work is
not bid, the lowest bona fide negotiated proposal for such work.
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5.3.1.3 For work for which no such bid or proposal is received,
ENGINEER'S most recent opinion of probable project cost. Labor
furnished by OWNER for the Project will be included in the
construction cost at current market rates including a reasonable
allowance for overhead and profit. Materials and equipment
furnished by OWNER will be included at current market prices
except used materials and equipment will be included as if
purchased new for the Project. No deduction is to be made from
ENGINEER'S compensation on account of any penalty, liquidated
damages, or other amounts withheld from payments to Contractor(s).
5.3.2 The "salary costs" used as a basis for payment mean the
salaries and wages paid to all personnel engaged directly on the
Project, including, but not limited to, engineers, architects,
survey men, designers, draftsmen, specification writers,
estimators, other technical personnel, stenographers, typists and
clerks; plus the cost of customary and statutory benefits
including, but not limited to, social security contributions,
unemployment, excise and payroll taxes, workmen's compensation,
health and retirement benefits, sick leave, vacation and holiday
pay applicable thereto. For the purposes of this agreement the
amount of customary and statutory benefits of all other personnel
will be considered equal to thirty percent of salaries and wages.
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• 5.3.3 Reimbursable expenses mean the actual expenses incurred
directly or indirectly in connection with services provided under
5.1.4 (excluding 5.1.4.4) of the Project for: transportation and
subsistence incidental thereto; obtaining bids or proposals from
Contractor(s); toll telephone and similar related items in
addition to those required under Section 1; computer time
including an appropriate charge for previously established
programs; and, if authorized in advance by OWNER, overtime work
requiring higher than regular rates.
i
5.3.4 If OWNER fails to make payment for monthly invoices due
ENGINEER for services and expenses within 30 days after receipt of
ENGINEER'S bill; therefore, the amounts due ENGINEER shall include
a charge at the rate of 1.5 percent per month from said 30th day,
and in addition ENGINEER may, after giving 7 days' written notice
to OWNER, suspend services under this Agreement until he has been
paid in full all amounts due him for services and expenses, except
where detailed in paragraph 5.2.1. If contract is terminated by
reason of nonpayment of fees as set out in this paragraph, a lump
sum payment will be made for all salary costs times a factor of
2.5 and all direct expenses times a factor of 1.10. This
stipulation is applicable to payments due ENGINEER during the
Project period.
-26-
• 5.3.5 Included in the basic fee are the following miscellaneous
expenses such as but not limited to telephone, reproduction,
printing, et cetera, that are related to performance of basic
services.
SECTION 6 - GENERAL CONSIDERATIONS
6.1 Re -use of documents. All documents including drawings and
specifications furnished by ENGINEER pursuant to this Agreement
are instruments of his services in respect of the Project. They
are not intended or represented to be suitable for re -use by OWNER
or others on extensions of the Project or on any other Project.
Any re -use without specific written verification or adaptation by
ENGINEER will be at OWNER'S sole risk and without liability or
legal exposure to ENGINEER, and OWNER shall indemnify and hold
harmless ENGINEER for all claims, damages, losses and expenses
including attorney's fee arising out of or resulting therefrom.
Any such verification or adaptation will entitle ENGINEER to
further compensation at rates to be agreed upon by OWNER and
ENGINEER.
6.2 Estimate of Cost.
6.2.1 Since ENGINEER has no control over the cost of labor,
materials or equipment, or over the Contractor(s) methods of
determining prices, or over competitive bidding or market
-27_
0
0 conditions, his opinions of probable Project cost or construction
•
cost provided for herein are to be made on the basis of his
experience and qualifications and represent his best judgment as
a design professional familiar with the construction industry, but
ENGINEER cannot and does not guarantee that proposals, bids or the
construction cost will not vary from opinions of probable cost
prepared by him. If prior to the bidding or negotiating phase,
OWNER wishes greater assurance as to the construction cost, he
shall employ an independent cost estimator as provided in paragraph
3.6.
6.3 Arbitration.- OMITTED.
Arbitration is not a part of this agreement.
6.4 Successors and assigns. OWNER and ENGINEER each binds
himself and his partners, successors, executors, administrators,
and assigns to the other party of the Agreement and to the
partners, successors, executors, administrators, and assigns of
such other party in respect to all covenants of this Agreement;
except as above, neither OWNER nor ENGINEER shall assign, sublet,
or transfer his interest in this Agreement without the written
consent of the other. Nothing herein shall be construed as
creating any personal liability on the part of any officer or
agent of any public body which may be a party hereto, nor shall it
be construed as giving any rights or benefits hereunder to anyone
other than OWNER or ENGINEER.
.:im
0 SECTION 7 - SPECIAL PROVISIONS
OWNER and ENGINEER agree that this Agreement is subject to the
following special provisions which together with the provisions
hereof and the exhibits and schedules hereto represent the entire
Agreement between OWNER and ENGINEER: they may only be altered,
amended or repealed by a duly executed written instrument.
7.1.1 The OWNER shall have right of approval and removal of
Resident Project Representative.
7.1.2 The OWNER shall receive written copies of all
correspondence from the ENGINEER related to the Project including
daily construction progress reports.
7.1.3 ENGINEER shall have final responsibility for maintaining
and preparing accurate record drawings of all construction.
Record drawings will be submitted to the OWNER (originals or
sepias) within three months after completion of construction
contracts.
7.1.4 Both parties recognize that it may be advantageous to
divide the Project into two or more parts for bidding and
construction.
C
_29_
• 7.1.5 It is hereby declared to be the intent of the maker hereof
i •
to create and covenant each separate provision hereof
independently in its operative effect of all other provisions, and
the fact that any article, section, paragraph, sentence, clause,
word or part of this instrument shall be declared invalid or
unconstitutional by final judgment of any court of competent
jurisdiction shall in no event effect any other article, section,
paragraph, sentence, clause, word, or part of this instrument, and
it is hereby declared to be the intent of the maker hereof to have
created and covenanted each article, section, paragraph, sentence,
clause, word, or part thereof irrespective of the fact that any
other article, section, paragraph, sentence, clause, word or part
thereof ma.y be thus declared invalid or unconstitutional.
-30-
•
IN WITNESS WHEREOF the parties hereto have made and executed this
Agreement as of the day and year first above written.
OWNER:
BAYTOWN AREA WATER AUTHORITY
By:
ATTEST:
By:
APPROVED AS TO FORM:
By:
(Seal)
-31-
ENGINEER:
WAYNE SMITH & ASSOCIATES, INC.
By:
. Wayne Smi h, P.E.
President
By • �slti /2f/
Charles W. Beere, P.E.
Secretary
•
TABLE
A
TABLE OF MEDIAN
COMPENSATION
Basic
Engineering
Construction
Charge
Fee
Cost
(Percent)
Dollars
$ 1501000
10.80
$ 16,200
175,000
10.57
18,498
2001000
10.34
20,680
225,000
10.11
22,748
2501000
9.88
24,700
2751000
9.64
26,510
300,000
9.40
28,200
350,000
9.27
32,445
400,000
9.14
36,560
450,000
9.01
40,545
500,000
8.88
44,400
550,000
8.75
48,125
600,000
8.62
51,720
6501000
8.49
55,185
7001000
8.37
58,520
750,000
8.23
61,725
800,000
8.10
64,800
850,000
7.97
67,745
900,000
7.84
70,560
950,000
7.72
73,340
1,000,000
7.60
76,000
1,250,000
7.53
94,125
1,500,000
7.46
111,900
1,750,000
7.39
129,325
2,000,000
7.32
146,400
21250,000
7.24
162,900
2,500,000
7.17
195,250
2,750,000
7.10
210,900
3,250,000
6.95
226,200
3,500,000
6.88
240,800
3,750,000
6.81
255,375
4,000,000
6.74
269,600
4,250,000
6.67
283,475
4,500,000
6.60
297,000
4,750,000
6.52
309,700
5,000,000
6.45
322,500
5,250,000
6.38
334,950
5,500,000
6.30
346,500
6,000,000
6.25
375,000
7,000,000
6.19
433,300
8,000,000
6.13
490,400
9,000,000
6.07
546,300
10,000,000
6.00
600,000
• 20,000,000
5.90
1,180,000
-32-
•
A
.
TABLE B
TABLE OF MEDIAN COMPENSATION
Basic
Engineering
Construction
Charge
Fee
Cost
(Percent)
Dollars
$ 150,000
8.85
$ 13,275
200,000
8.70
171400
300,000
8.39
25,170
400,000
8.09
32,360
500,000
7.78
38,900
600,000
7.48
44,880
700,000
7.17
50,190
800,000
6.87
54,960
900,000
6.56
59,040
1,000,000
6.26
62,600
2,000,000
6.12
122,400
3,000,000
5.98
179,400
4,000,000
5.84
233,600
5,000,000
5.69
284,500
6,000,000
5.55
333,000
7,000,000
5.41
378,700
8,000,000
5.27
421,600
9,000,000
5.12
460,800
10,000,000
4.97
497,000
20,000,000
4.80
960,000
•
NOTES: (1) When Construction Cost is under $150,000, use
reimbursable basis of compensation.
(2) Construction cost above is the work authorized at one
time. However, where the work is to be accomplished
in a number of separate construction contracts, then
each such project element should be evaluated on an
individual basis, with additional compensation to the
Engineer.
(3) The Basic Charge presented above represents median
compensation. The appropriate compensation for any
given assignment may vary above or below the curve,
depending upon complexity.
(4) Compensation for alteration work should be increased
by at least one -third above the median compensation
illustrated.
-33-
• Table A is intended to apply to assignments of which the following
are typical examples:
•
Water, wastewater and industrial waste treatment plants
Low cost, or complicated, waterfront and marine terminal
facilities
Complicated dams and hydro -power installations
Small. bridges and bridges which are complicated by involved
geome:trics and unsymmetrical features, or which require
location and /or alternate design studies
Grade crossing eliminations.
Urban streets and freeways, including related drainage
facilities
Water distribution lines under 16 -inch diameter
Sanitary sewage collection lines under 24 -inch diameter
Pumping stations
Air pressure tunnels
Swimming pools
Foundations
Table B is intended to apply to less complication assignments of
which the following are examples:
Large intercepting and relief sewers
Storm sewers and drains
Sanitary sewage collection lines 24 -inch diameter and over
Water distribution lines 16 -inch diameter and over
Simples bridges and other structures of straightforward or
conventional design
Dams of average complexity
Airport paving and grading
Irrigation works, except pumping plants
Railways
Levees and flood walls, conventional
Sewer and water tunnels (free air)
Earthwork and dredging
Highways and rural roads, except low -cost rural roads
High -cost wharf facilities of conventional design
Retaining walls and bulkheads, conventional
Roads and streets
-34-
0
• EXEiIBIT "A"
Duties, Responsibilities and Limitations
of the Authority of Resident Project Representative
•
A. General
Resident Project Representative is ENGINEER's Agent and
shall act as directed by and under the supervision of
ENGINEER. He shall confer with ENGINEER and OWNER regarding
his actions. His dealings in matters pertaining to the on-
site Work will in general be only with OWNER, ENGINEER, and
CONTRACTOR. His dealings with subcontractors will only be
through or with the full knowledge of CONTRACTOR or his
superintendent.
B. Duties and Responsibilities
Resident Project Representative shall:
1. Schedules: Review the progress schedule, schedule of
Shop Drawing submissions, schedule of values and other
schedules prepared by CONTRACTOR and consult with
ENGINEER concerning their acceptability.
2. Conferences: Attend preconstruction conferences.
Arrange a schedule of progress meetings and other job
conferences as required in consultation with ENGINEER
and notify in advance those expected to attend. Attend
meetings and maintain and circulate copies of minutes
thereof.
EXHIBIT "A" 1/7
• 3. Liaison:
a. Serve as ENGINEER's liaison with CONTRACTOR,
0
working principally through CONTRACTOR'S
superintendent and assist him in understanding the
intent of the Contract Documents. Assist ENGINEER
in serving as OWNER's liaison with CONTRACTOR when
CONTRACTOR's operations affect OWNER's on --site
operations.
b. As requested by ENGINEER, assist in obtaining from
OWNER additional details or information, when
required at the job site for proper execution of
the Work.
C. In the interest of preserving the proper channels
of communication between OWNER and CONTRACTOR.
4. Shop Drawings and samples:
a. Receive and record date of receipt of shop
Drawings and samples which have been approved by
ENGINEER.
b. Receive samples which are furnished at the site by
CONTRACTOR for ENGINEER's approval, and notify
ENGINEER of their availability for examination.
C. Advise ENGINEER and CONTRACTOR or his
superintendent immediately of the commencement of
any Work requiring a Shop Drawing or sample
submission if the submission has not been approved
by ENGINEER.
EXHIBIT "A" 2/7
. �. Review of Work, Rejection of Defective Work,
Inspections and Tests:
a. Conduct on -site observations of the Work in
•
progress to assist ENGINEER in determining that
the Project is proceeding in accordance with the
Contract Documents and that completed Work will
conform to the Contract Documents.
b. Report to ENGINEER whenever he believes that any
Work is unsatisfactory, faulty or defective or
does not conform to the Contract documents, or has
been damaged, or does not meet the requirements of
any inspections, tests or approvals required to be
made: and advise ENGINEER when he believes Work
should be corrected or rejected or should be
uncovered for observation, or requires special
testing or inspection.
C. Verify that tests, equipment and systems startups
and operating and maintenance instructions are
conducted as required by the contract Documents
and in presence of the required personnel, and
that CONTRACTOR maintains adequate records
thereof: observe, record and report to ENGINEER
appropriate details relative to the test
procedures and startups.
EXHIBIT "A" 3/7
•
0
• d. Accompany OWNER and visiting inspectors
representing public or other agencies having
•
jurisdiction over the Project, record the outcome
of these inspections and report to ENGINEER.
6. Interpretation of Contract Documents: Transmit to
CONTRACTOR clarification and interpretation of the
Contract Documents as issued by ENGINEER.
7. Modifications: Consider and evaluate CONTRACTOR's
suggestions for modifications in Drawings of
Specifications and report them with recommendations to
ENGINEER.
8. Records:
a. Maintain at the job site orderly files for
correspondence, reports of job conferences, Shop
Drawings and sample submissions, reproductions of
original Contract Documents including all addenda,
change orders, field orders, additional Drawings
issued subsequent to the execution of the
Contract. ENGINEER's clarifications and
interpretations of the Contract Documents,
progress reports and other Project - related
documents,
b. Keep a diary or log book, recording hours on the
job site, weather conditions, data relative to
questions of extras or deductions, list of
principal visitors, daily activities, decisions,
EXHIBIT "A" 4/7
• observations, in general and specific observations
in more detail as in the case of observing test
procedures. Send copies to ENGINEER.
C. Record names, addresses and telephone numbers of
all CONTRACTORS, subcontractors and major
suppliers of equipment and materials.
d. Maintain an accurate, legible set of as -built
prints of the drawings.
9. Reports:
•
a. Furnish ENGINEER periodic reports as required of
progress of the Work and of CONTRACTOR's
compliance with the approved progress schedule,
schedule of Shop Drawing submissions and other
schedules.
b. Consult with ENGINEER in advance of scheduled
major tests, inspections or start of important
phases of the Work.
10. Payment Requisitions: Review Applications for Payment
with CONTRACTOR for compliance with the established
procedure for their submission and forward them with
recommendations to ENGINEER, noting particularly their
relations to the schedule of values, work completed and
materials and equipment delivered at the site.
11. Guarantees, Certificates, Maintenance and Operation
Manuals: During the course of the Work verify that
guarantees, certificates, maintenance and operation
EXHIBIT "A" 5/7
• manuals and other data required to be assembled and
furnished by CONTRACTOR are applicable to the items
i
actually installed; and deliver these data to ENGINEER
for his review and forwarding to OWNER prior to final
acceptance of the Project.
12. Completion:
a. Before ENGINEER issues a Certificate of
Substantial Completion, submit to CONTRACTOR a
list of observed items requiring correction.
b. Conduct final inspection in the company of
ENGINEER, OWNER and CONTRACTOR and prepare a final
list of items to be corrected.
C. Verify that all items on final list have been
corrected and make recommendations to ENGINEER
concerning acceptance.
C. Limitations of Authority
Except upon written instructions of ENGINEER, Resident
Project Representative:
1. Shall not authorize any deviation from the Contract
Documents or approve any substitute materials or
equipment.
2. Shall not undertake any of the responsibilities of
CONTRACTOR, subcontractors or CONTRACTOR's
superintendent.
3. Shall not expedite Work for the CONTRACTOR.
EXHIBIT "A" 6/7
• 4. Shall not advise on or issue directions relative to any
aspect of the means, methods, techniques, sequences or
procedures of construction unless such is specifically
•
called for in the Contract Documents.
5. Shall not advise on or issue directions as to safety
precautions and programs in connection with the Work.
6. Shall not authorize OWNER to occupy the Project in
whole or in part.
EXHIBIT "AT' 7/7