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Ordinance No. 8,630L J 990708 -6 ORDINANCE .110,. 8630 AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH WAYNE SMITH & ASSOCIATES, INC., FOR THE PREPARATION OF PLANS AND SPECIFICATIONS FOR THE 1999 MUNICIPAL STREET REHABILITATION PROGRAM; 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 and the City Clerk of the City of Baytown to execute and attest to a Professional Services Agreement with Wayne Smith & Associates, Inc., for the preparation of plans and specifications for the 1999 Municipal Street Rehabilitation Program. 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 8th day of July, 1999. PETE C. ALFARO, Nfayor ATTEST: EILEEN P. HALL, City Clerk APPROVED AS TO FORM: i •'• I My I I R W W 1 c:\MyDocuments% Council\ Meetings liuly\AuthorizeContractW SmithFor1999MunStRehab.doc • r: E, STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SER VICES THIS IS ANA GREEMENT effective as of ("Effective Date') bebvicen CITY OFBAYTOWN ( "OWNER ") and WAYNESMITHAND ASSOCIATES, INC. ( "ENGINEER'). OWNER intends to CONSTRUCT THE 1999 MUNICIPAL STREET REHABILITATION PROJECT ( "Project). OWNER and ENGINEER in consideration ojtheir mutual covenants as set forth herein agree as follows: Page 1 of 12 pages Standard Form of Agreement Between Ucner And Professional Engineer *7 C ARTICLE 1 - SERVICES OF ENGINEER 1.01 Scope A ENGINEER shall provide the Basic and Additional Services set forth herein and in Exhibit A- B. Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A- C. If authorized by OWNER, ENGINEER shall furnish Resident Project Representative(s) with duties, responsibilities and limitations of authority as set forth in Exhibit D. 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 ENGINEER's services and compensation under this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion. Unless specific periods of time or specific dates for providing services are specified in this Agreement, ENGINEER's obligation to render services hereunder will be for a period which may reasonably be required for the completion of said services. B. If in this Agreement specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided, and if such periods of time or dates are changed through no fault of ENGINEER, the rates and amounts of compensation provided for herein shall be subject to equitable adjustment. If OWNER has requested changes in the scope, cadent, or character of the Project, the time of performance of ENGINEER's services shall be adjusted equitably. C. For purposes of this Agreement the term "day" meant a calendar day of 24 hours. 3.02 Suspension A If OWNER fails to give prompt written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if ENGINEER's services are delayed through no fault of ENGINEER, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. B. If ENGINEER's services are delayed or suspended in whole or in part by OWNER or if ENGINEER'S services are extended by Contractor's actions or inactions for more than 90 days through no fault of ENGINEER, ENGINEER shall 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. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under EYlubit A, Part 1, as set forth in Exhibit C. B. ForAdditionol Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.0l.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. 4.02 Other Provisions Concerning Payments A Preparation ojlrrvoices. Invoices will be prepared in accordance with ENGINEER's standard invoicing practices and Brill be submitted to OWNER by ENGINEER unless otherwise agreed. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. Payment of Invoices. Imvics are due and payable within 30 days of reccipt. If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after mocipt of ENGINEER's invoice therefor, the amounts due ENGINEER will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted Page 2 of 12 pages Standard Form of Agreement Between &Nner And Professional Engineer • C7 try by law, if less) from said thirtieth day. In addition, ENGINEER may, after giving seven days written notice to OWNED suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. Payments will be credited first to interest and then to principal. 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 wu7t be paid D. Payments Upon Termination. 1. In the event of any termination under paragraph 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. In the event of termination by OWNER for convenience or by ENGINEER for cause, ENGINEER, in addition to invoicing for those items identified in subparagraph 4.02.1).1, shall be entitled to invoice OWNER and shall be paid a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with ENGINEER's Consultants, and other related close -out costs, using methods and rates for Additional Services as set forth in Exl -ibit C. E. 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. To the cvtcnt necessary to verify ENGINEER's charges and upon OWNER's timely request, copies of such records will be made av-ail;able to OWNER at cost- F. Legislative Actions. In the event of legislative actions alter 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 urns, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Eapcnse to which a Factor of 1.0 shall be applied. Should such taxes, foes, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. ARTICLE 5 - OPMONS 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. However, since ENGINEER has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary 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 If a Construction Cost limit is established between OWNER and ENGINEER, such Construction Cost limit and a statement of ENGINEER's rights and responsibilities with respect thereto trill be specifically set forth in Exhibit F, "Construction Cost Limit," to this Agreement. 5.03 Opinions of Total Project Costs A. ENGINEER assumes no responsibility for the accuracy of opinions of Total Project Costs. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. The staixiard of care for all professional engineering and related services performed or furnished by ENG94EER under this Agreement will be the care and skill ordinarily used by members of ENGINEER's profession practicing under similar circumstances at the same time and in the same locality. ENGINEER makes no warranties, express or implied, under this Agreement or otherwise, in connection with ENGINEER's services. B. ENGINEER shall be responsible for the technical accuracy of its services and documents resulting thercfrorr>, and OWNER shall not be responsible for discovering deficiencies thercirL ENGINEER shall correct such dc6cicncics ,,Nithout additional compensation cxc p to the Page 3 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer C7 extent such action is directly attributable to deficiencies in OWNER - furnished information. C. ENGINEER shall perform or furnish 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. ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or fiunishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER. D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER - mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation.,. E. 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. 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. ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in the ENGINEER's having to certify, guarantee or warrant the existence of conditions whose c istcncc the ENGINEER cannot ascertain. OWNER agues not to make resolution of any dispute with the ENGINEER or payment of any amount due to the ENGINEER in any way contingent upon the ENGINEER's signing any such certification. L During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work J. 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. K 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 arty other persons (except ENGINEER's own employees) at the Site or otherwise furnishing or performing any of the Contractor's woriq- or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER- L. The General Conditions for any construction contract documents prepared hereunder are to be the "Standard General Conditions of the Construction Contract" as prepared by the Engineers Joint Contract Documents Committee (Document No. 1910 -8, 1996 Edition) unless both parties mutually agree to use other General Conditions as specifically referenced in Exhibit J. 6.02 Autborized 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 representath-es with respect to the services to be performed or furnished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party- 6.03 Design without Construction Phase Services A Should OWNER provide Construction Phase services with either OWNER's representatives or a third party, ENGINEER's Basic Services under this Agreement will be considered to be completed upon completion of the Final Design Phase or Bidding or Negotiating Phase as outlined in Exhibit A. Page 4 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer C r LJ B. It is understood and agreed that if ENGINEER's Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, and that such services will be provided by OWNER, then OWNER assumes all responsibility for interpretation of the Contract Documents and for construction observation or review and waives any claims against the ENGINEER that may. be in any way connected thereto. 6.04 Use of Documents A. All Documents are instruments of service m respect to this Project, and ENGINEER shall retain an ownership and property interest therein (including the right of reuse at the discretion of the ENGINEER) whether or not the Project is completed B. Copies of OWNER - furnished data that may be relied upon by ENGINEER are limited to the printed copies (also known as hard copies) that are delivered to the ENGINEER pursuant to Exhibit B. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to ENGINEER are only for convenience of ENGINEER Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or scaled by the ENGINEER. Files in electronic media format of text, data, graphics; or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data siorcd in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, alter which the receiving party shall be deemed to have accepted the data thus transferred Any cr-rors detected within the 60-day acceptance period will be corrected by the party delivering the electronic files. 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 from those used by ENGINEER at the beginning of this Project. F. OWNER may make and retain copies of Documents for information and reference in connection with use on the Project by OWNER Such Documents are not intended or represented to be suitable for reuse by OWNER or others on extensions of the Project or on any other project. Any such reuse or modification without written verification or adaptation by ENGINEER, as appropriate for the specific purpose intended, will be at OWNER's sole risk and without liability or legal exposure to ENGINEER or to ENGINEER's Consultants. OWNER shall indemnify and hold harmless ENGINEER and ENGINEER's Consultants from all claims, damages, losses, and expenses, including attorneys' fees arising out of or resulting therefrom G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. K 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. OWNER shall procure and maintain insurance as set forth in Exhibit G, " Insurance_" OWNER shall cause ENGINEER and ENGINEER's Consultants to be listed as additional insyrods on any general liability or property insurance policies carried by OWNER which are applicable to the Project. C. OWNER shall require Contractor to purchase and maintain general liability and other insurance as specified in the Contract Documents and to cause ENGINEER and ENGINEER's Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project D. OWNER and ENGINEER shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of ENGINEER's services and at renewals thereafter during the life of the Agreement. E. All policies of property iruurancc shall contain provisions to the effect that ENGINEER's and ENGINEER's Consultants' interests arc covered and that in the event of payment of any loss or damage the insurers will have no Page 5 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer r: rights of recovery against any of the insureds or additional insureds thereunder. F. At any time, OWNER may request that ENGIN"F l at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A The obligation to provide further services under this Agreement may be terminated: 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. b. By ENGINEER: 1) upon seven days written notice if ENGINEER believes that ENGINEER is being requested by OWNER to furnish or perform services contrary to ENGINEER's responsibilities as a licensed professional; or 2) upon seven days written notice if the ENGINEER's services for the Project are delayed or suspended for more than 90 days for reasons beyond ENGINEER's control. 3) ENGINEER shall have no liability to OWNER on account of such termination c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof-, provided, ho«cvcr, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no rase more than, 60 days after the date of receipt of the notice. 2. For convenience, a. By OWNER effective upon the receipt of notice by ENGINEER B. The terminating party under paragraphs 6.06.A.1 or 6.06.A.2 may set the effective date of termination at a time up to 30 days later than otherwise provided to allow ENGINEER to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. ` 6.07 Controlling Law A This Agreement is to be governed by the law of the state in which the Project is located 6.08 Successors, Assigns, and Beneficiaries A OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal rqx, scntatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08B the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in aspect of all covenants, agreements and obligations of,this Agreement. B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or intent (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: I. 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 sunny for or employee of any of them. Page 6 of 12 pages Standard Forni of Agreement Between Owncr And Professional Engineer .7 E, r1 �J i 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 Dispute Resolution A OWNER and ENGINEER agree to negotiate all disputes between them in good faith for a period of 30 days from the date of notice prior to exercising their rights under Exhibit H or other provisions of this Agreement, or under law. In the absence of such an agreement, the parties may exercise their rights under law. B. If and to the extent that ;OWNER and ENGINEER have agreed on a method and procedure for resolving disputes between them arising out of or relating to this Agreement, such dispute resolution method and procedure is set forth in Exhibit H, "Dispute Resolution." 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. OWNER has disclosed to the best of its knowledge 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. If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER and, to the extent of applicable Laws and Regulations, appropriate governmental officials. D. It is acknowledged by both parties that ENGMER's scope of services does not include any services related to a Hazardous Environmental Condition In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate spocialist consultant(s) or contractor(s) to identify and, as appropriate, abate, rcmcdiate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance.«ith 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 under this Agreement. F. If ENGINEER's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGINEER's terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks A Indemnification 1. To the fullest extent permitted by law, ENGINEER shall indemnify and hold harmless OWNER, OWNER's offfioers, directors, partners, and employees from and against any and all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of ENGINEER or ENGINEER's officers, directors, partners, employees, and ENGMER's Consultants in the performance and furnishing of ENGINEER's services under this Agreement. 2. To the fullest extent permitted by law, OWNER shall indemnify and hold harmless ENGINEER ENGINEER's officers, directors, partners, employees, and ENGINEER's Consultants from and against an), and all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of OWNER or OWNER's officers, directors, partners, employees, and OWNER's consultants with respect to this Agreement or the Project- 3. To the fullest extent permitted by law, ENGINEER's total liability to OWNER and anyone claiming by, through, or under OWNER for any cost, loss, or damages caused in part by the negligence of ENGINEER and in part by the negligence of OWNER or any other negligent entity or individual, shall not exceed the percentage shark that ENGINEER's negligence bears to the total negligence of OWNER ENGINEER and all other negligent entities and individuals. 4. In addition to the indemnity provided under paragraph 6.11.A_2 of this Agreement, and to the fullest Page 7 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer r� U extent permitted by law, OWNER shall indemnify and hold harmless ENGINEER and its officers, directors, partners, employees, and ENGINEER'S Consultants from and against ® all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused by, arising out of or resulting from a Hazardous Environmental Condition, provided that (i) any such cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than completed Work), including the loss of use resulting therefrom, and (ii) nothing in this paragraph 6.11.A.4. shall obligate OWNER to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence or willful misconduct. 5. The indemnification provision of paragraph 6.11.A_1 is subject to and limited by the provisions agreed to by OWNER and ENGINEER in Exhibit I, "Allocation of Risks," if any. 6.12 Notices A 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. All notices shall be effective upon the date of receipt 6.13 Survival . A All express representations, indemnifications, or 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 unenforcable under any Laws or, Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision- 6.15 Waiver A Non - enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof. 1. Addenda — Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services —The services to be performed for or 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 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 lcvcls 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 E:dubit A, Part 1, of this Agreement 7. Bid —Thc offer or proposal of the bidder submitted on the prescribed form setting forth the prigs for the Work to be performed 8. Bidding Documents —The advertisement or invitation to Bid, instnictions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. Page 8 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer E 9. Change Order —A document recommended by ® ENGINEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement 10, Construction Agreement -The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor cbVering the Work 11. Construction Contract —The entire and integrated written agreement between the OWNER and Contractor concerning the Work. 12. Construction Cost —The cost to OWNER of those portions of the entire Project designed or specified by ENGINEER. Construction Cost does not include costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of - -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement Constriction Cost is one of the items comprising Total Project Costs. 13. Contract Documents— Documents that establish the rights and obligations of the parties engaged iri construction and include the Construction Agreement between OWNER and Contractor, 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, 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. 15. Contract Turves —The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Substantial 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 Substantial Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective —An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment 19. Documents —Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media 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 shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings arc not Drawings as so defined 21. Effective Dale ojthe 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 Construction Agreement is signed and dc&cr d by the last of the two parties to sign and deliver. 22. Effective Dale 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 14. Contract Price —The moneys payable by the last of the two parties to sign and deliver. OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in 23. ENGINEER's Consultants— Individuals or ® the Construction Agreement. entities having a contract with ENGINEER to furnish Page 9 of 12 pages Standard Form of Agreement Between Owncr And Professional Engineer C C7 services with respect to this Project as ENGINEER's independent professional associates, consultants, ® subcontractors, or vendors. The term ENGINEER includes ENGMEER'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. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedlues that govern the Wodc to be performed or firrnished by Contractor with respect to the Project 26. Hazardous Environmental Condition -The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work- 27. 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. 28. Laws and Regulations; Laws or Regulations -Arry and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 29. PCB's - Polychlorinated biphenyls. 30. Petroleum- Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 31. Radioactive Materials-Sourcc, 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, 32. Record Drawings -The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated isby Contractor to show changes made during construction. 33. Reimbursable Erpenses -The expenses incurred directly by ENGINEER in connection with the performing or fiunishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 34. 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. 35. Samples - Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged 36. 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 sonic portion of the Work 37. Site -Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnistiq by OWNER which are designated for use of Contractor. 38. 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. 39. Substantial Completipn -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 thercof) can be utilized for the purposes for which it is intender The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof Page 10 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer E v 40. Supplementary Conditions —That part of the Contract Documents which amends or supplements the General Conditions. 41. 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 -0f - -way, or compensation for damages to. properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 42. fork —The entire completed construction or the various separately identifiable pans thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 43. {York Change Directive —A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 44. 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 -cngineering 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, - ENGINEER's Services," consisting of eight (8) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of three (3) pages. C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of three (3) pages- D. Exhibit D, "Duties,-- Responsibilities and Limitations of Authority of Resident Project Representative," is not a part of this contract. E. Exhibit E, "Notice of Acceptability of Work, "consisting of two (2) pages. F. Exhibit F, "Construction Cost Limit," is not a part of this contract G. Exhibit G, "Insurance," consisting of two (2) pages. K Exhibit H, "Dispute Resolution," consisting of one (1) page. I. Exhibit 1, "Allocation of Risks," consisting of one (1) page. J. Exhibit J, "Special Provisions," is not a part of this contract. 8.02 Total Agreement A This Agreement (consisting of pages 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. Page I 1 of 12 pages Standard Form of Agreement Between Owner And Professional Engineer IN WTINESS WHERE, , the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. r 0 Title: Date Signed: Address for giving notices: EN By: R Wme Smith. P.E. Title: President Date Signed: Address for giving notices: 11821 East Fmmz Suite 400 Houston Texas 77029 Designated Representative (paragraph 6.02.A): Designated Representative (paragraph 6.02. A): Phone Number. Facsimile Number: v Title: Manager of Enfdnecring Phone Number: 713 - 450 -1300 Facsimile Number. 713 -450 -1385 • .... .a ..t sp m Page 12 of 12 pages Standard Form of Agreement Between Owncr And Professional Engineer This is EXI3IBrr A, consisting of 8 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEE ENIGINEER's Services Article 1 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 1 — BASIC SERVICES A1.01 Preliminary Design Phase A ENGINEER shall: 1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data. 2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in Exhibit B which arc not part of ENGINEER's Basic Services, and assist OWNER in obtaining such data and services. 3. Identify, 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 cmironincntal assessment. 4. Identify and evaluate potential solutions available to OWNER and, after consultation with OWNED recommend to OWNER those solutions which in ENGINEER's judgment .meet OWNER's requirements for the Project. 5. Provide necessary field surveys and topographic and utility mapping for design purposes. Utility mapping will be based upon information obtained from utility owners. 6. Pncparc a report (the "Report') Nvhich gill, as appropriate, contain schematic layouts, sketches and conceptual design criteria with appropriate c-xlubits to indicate the agreed -to requirements, considerations involved, and those alternate solutions available to OWNER which ENGINEER recommends. This 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 costs of design, professional, and related services provided by ENGINEER and, on the basis of information famished by OWNED allowances for other items and services included within the definition of Total Project Costs. 7. Furnish three (3) revic%v copies of the Report to OWNER within ninety (90) days of authorization to begin services and review it with OWNER 8. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish five (5) final copies of the revised Report to the OWNER within twenty (20) days after completion of reviewing it with OWNER- B. ENGINEER's services under the Preliminary Design Phase will be considered complete on the date when the final topics of the revised Report have been delivered to OWNER- Page 1 of 8 pages Exhibit A - Engineer's Services �A • L A1.02 Final Design Phase A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER - directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from OWNER, ENGINEER shall: 1. On the basis of the above aooeptana; direction, and authorzation, prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be prepared, where appropriate, in general conformance with the 16-division format of the Construction Specifications Institute. 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, itemized as provided in paragraph A1.0l.A5. 4. Perform or provide the following additional Final Design Phase tasks or deliverables: 5. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 6. Submit three (3) final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within ninety (90) days after authorization to proced with this phase. B. In the everit 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 arc applicable to the work under such separate prime contracts. This schedule is do 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 the ENGINEER's compensation has been established under this Agreement is one (1). D. ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph A1.03.A.6 have been delivered to OWNER- A1.03 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where applicable, maintain a record of prospective bidden to whom Bidding Documents have been issued, attend pre -Bid conferences, if any, and receive and process Contractor deposits or charges for the Bidding Documents. 2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. Page 2 of 8 pages Exhibit A - Engineer's Services E 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: 5. 'Attend the Bid opening, prepare Bid tabulation sheets, and assist OWNER in evaluating Bids or proposals and in assembling and awarding contracts for the Work- B. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective Contractors (except as may be required if Exhibit F is a part of this Agreement). A1.04 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: 1. GeneralA&Wnistration ofConstuction Contract. Consult with OWNER and ad 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. Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01.0. 3. Pre - Construction Conference. Participate in a Pre-Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. risits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. Make visits to the Site at intervals appropriate to the various stages of construction, as ENGINEER 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 e:dend. to every aspect of Contractor's work in progress or to invok detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar meth assisted by the Resident Project R observations, ENGINEER will determine in general 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. 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 Page 3 of 8 pages Exhibit A - Engineer's Services as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will conform in general to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. 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 fiunish and perform its work in accordance with the Contract Documents. 6, 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 conforms generally 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 Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required 9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 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. Suhstitutes 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 A2.02.A2 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 certificates will be for the purpose of determining that the results certified indicate compliance with the Contract D 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. Disagreements betxeen 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 and shall not be liable in connection with any decision rendered in good faith in such capacity. 13. Applications 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: Page 4 of 8 pages Exhibit A - Engineer's Services n a_ Determine 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 generally 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 arry 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 wodc 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 A1.05.A.6.a are expressly subject to the limitations set forth in paragraph A1.05.A.6.b and other express or general limitations in this Agreement and elsewhere. b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented that observations made by ENGINEER to check the quality or quantity of Contractor's work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to 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. Receive and review maintenance and operating instructions, schedules, and guarantees. b. Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph A1.05.A. 10, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents. to obtain final payment. The ement of such ENGINEER's review will be limited as provided in paragraph A1.05.A- 10. c. ENGINEER shall transmit these documents to OWNER. 15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER considers the Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial Completion to OWNER and Contractor. 16. Additional Tasks. Perform or provide the following additional Construction Phase tasks or deliverables: 17. Tina! Notice ojAeoeptability 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 Worm') that the Work is acceptable (subject to the provisions of paragraph A1.05.A 14.b) to the best of ENGINEER's knowledge, information, and belief and based on the extent of the services Page 5 of 8 pages Exhibit A - Engineer's Smiccs C ® provided by ENGRq:EER under this Agreement. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon written recommendation by ENGINEER for final payment to Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.03.C, Construction Phase services may be rendered at different times 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 their subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Worst ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. A1.05 . Post- Construction Phase A. Upon written authorization from OWNED ENGINEER, during the Post- Construction Phase, shall: 1. Provide assistance in connection with the testing and adjusting of Project equipment or systems. 2. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems. 3. Assist OWNER in developing procedures for control of the operation and maintenance of, and record keeping for Project equipment and systems. 4. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist OWNER in consultations and discussions with Contractor concerning correction of any such defects, and make recommendations as to replacement or correction of Defective Work, if present. 5. Perform or provide the following additional Post- Construction Phase tasks or deliverables: 6. In company with OWNER or OWNER's representative, provide an inspection of the Project within one month before the end of the Correction Period to ascertain whether any portion of the Work is subject to correction. B. The Post-Constnrcrion Phase services may commence during the Construction Phase and, if not otherwise modified in this Exhibit A, will terminate at the end of the Correction Period. PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Requiring 0WAER'sAuthorization in Advance A If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or rcvicw of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER Is Page 6 of 8 pages Exhibit A - Engineer's Services 11 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in size, complexity, OWNER's schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement or are due to any other causes beyond ENGINEER's control. 4. Services resulting from OWNER's request to evaluate additional Study and Report Phase alternative solutions beyond those identified in paragraph ALOI.A.4. 5. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B. 6. Providing renderings or models for OWNER's use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor, and audits or inventories required in connection with construction performed by OWNER 8. Furnishing services of ENGINEER's Consultants for other than Basic Services. 9. Services attnbutable to more prime construction contracts than specified in paragraph A1.03.C. 10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constnrctibility review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by OWNER for the Work or a portion thereof. 13. Determining the acceptability of substitute materials and equipment proposed during the Bidding or Negotiating Phase when substitution prior to the award of contracts is allowed by the Bidding Documents. 14. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by Exhibit F. 15. Providing construction surveys and staking to enable Contractor to perform its work other than as required under paragraph A1.05.A.5, and any type of property surveys or related engineering services needed for the transfer of interests in real property, and providing other special field surveys. 16. Providing Construction Phase services beyond the Contract Times set forth in Exhibit C. 17. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current Laws and Regulations. Page 7 of 8 pages Exhibit A - Engineer's Services ® 18. Preparing and furnishing to OWNER Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. .7 19. Preparation of operation and maintenance manuals. 20. Preparing to serve or serving as' a consultant or witness for OWNER in arty litigation, arbitration or other dispute resolution process related to the Project. 21. Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.0l.G of the Agreement. 22. Other services performed or fiunished by ENGINEER not otherwise provided for in this Agreement. A2.02 Required Additional Services A ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing promptly after starting any such Additional Services. 1. . Services in connection with Work Change Directives and Change Orders to reflect changes requested by OWNER so as to make the compensation commensurate with the extent of the Additional Services rendered 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than "or-equal" items; and services after the award of the Construction Agreement in evaluating and determining the acceptability of a substitution which is found to be inappropriate for the Project or an excessive number of substitutions. 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during constriction made necessary by (1) emergencies or acts of God endangering the Woric, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by fire or other cause during construction,' (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 5. Services (other than Basic Services during the Post - Construction Phase) in connection with any partial utilization of any part of the Work by OWNER prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work Page 8 of 8 pages Exhibit A - Engineer's Services �J r� �J This is EXHMrr B, consisting of 3 gages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A- Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. Following ENGIIER's assessment of initially - available Project information and data and upon ENGINEER's request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services. Such additional information or data would generally include the following: 1. Property descriptions. 2. Zoning, deed, and other land use restrictions. 3. Property, boundary, easerri£nt, right -of -way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site, or hydrographic surveys, with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 6. Data or corsultations as required for the Project but not otherwise identified in the Ag=ment or the Exhibits thereto. D. Give prompt written notice to ENGINEER wherrvcr OWNER observes or otherwise becomes aware of a Hazardous Environmental Condition or of any other development that affects the scope or time of performance of ENGINEER's services, or any defect or nonconformance in ENGINEER's services or in the work of any Contractor. E. Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as Page I of 3 pages Exhibit B - Owncr's Responsibilities Ll C required F. Arrange for safe access to and make all provisions for ENGINEER to enter upon public and private 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. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all phases of the Project designed or specified by ENGINEER and such reviews, approvals, and consents from others as may be necessary for completion of each phase of the Project. L Provide, as required for the Project: 1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as OWNER requires, Contractor raises, or ENGINEER reasonably requests. 3. Such auditing services as OWNER requires to ascertain how or for what purpose Contractor has used the moneys paid 4. Placement and payment for advertisement for Bids in appropriate publications. J.' Advise ENGI NEM 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 constructibility review. K. Furnish to ENGINEER data as to OWNER's anticipated casts for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's opinion of Total Project Costs. , L. If OWNER designates a construction manager or an individual or entity other than, or in addition to, ENGINEER to represent OWNER at the Site, define and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER- M If more than one prime contract is to be a«arded for the Work designed or specified by ENGINEER, designate a person or entity to have authority and respormbility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the duties, responsibilities, and authority of ENGINEER as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin N. Attend the prebid conference, bid opening, pre-construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment inspections. O. Providc the scrvias of an independent testing laboratory to perform all inspections, tests, and approvals of Samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of OWNER, prior to their incorporation into the Work with appropriate professional interpretation thereof. Page 2 of 3 pages Exhibit B - Owner's Responsibilities C �J P. Provide inspection or monitoring services by an individual or entity other than ENGINEER (and disclose the identity of such individual or entity to ENGINEER) as OWNER determines necessary to verify: 1. That Contractor is complying with any Laws and Regulations applicable to Contractor's performing and furnishing the Work. 2. That Contractor is taking all necessary precautions for safety of persons or property and complying with any special provisions of the Contract Documents applicable to safety.. Q. Provide ENGINEER with the findings and reports generated by the entities providing services pursuant to paragraphs B2.01.O and P. R. Perform or provide the following additional services: Page 3 of 3 pages Exhibit B - Owner's Responsibilities Ll This is EXHIBrr C, consisting of 3 pages, referred to in and part of the Agreement between 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 the total services actually completed during the supplemented to include the following agreement of billing period to the Lump Sum. the parties: 5. The Lump Sum is conditioned on ARTICLE 4 — PAYMENTS TO THE ENGINEER Contract Times to complete the Work not exceeding nine (9) months. Should the Contract C4.01 For Basic Services Having A Determined Times to complete the Work be extended beyond Scope —Lump Sum Method of Payment this period, the total compensation to ENGINEER shall be appropriately adjusted. A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A, except for services of ENGINEER's Consultants and Post - Construction Phase services, if any, as follows: 1. A Lump Sum amount of $163,499.00 based on the following assumed distribution of compensation: a. Preliminary Design Phase $57,224.65 b. Final Design Phase $73,574.55 c. Bidding and Negotiating Phase $8,174.95 d. Construction Phase $24,524.85 2. ENGINEER may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the OWNER. 3. The Lump Sum includes compensation for ENGINEER's services excluding the services of ENGINEER's Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable Expenses, 6. If more prime contracts are awarded for Work designed or specified by ENGINEER for this Project than identified in Exhibit A, the ENGINEER shall be compensated an additional amount equal to $30,000.00 for all Basic Services for each prime contract added. 04.02 For Banc Services Having An Undetermined Scope — Direct Labor Costs Times a Factor Method of Payment A. OWNER shall pay ENGINEER for: 1. Post - Construction Phase Services. For Post - Construction Phase services under paragraph A1.05 of Exhibit A, an amount equal to the ENGINEER's Direct Labor Costs times a Factor of 3.06 for the services of ENGINEER's employees engaged directly on the Project, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any in the Post - Construction Phase. The total compensation under this paragraph is estimated to be $5,000.00 04.03 ForAdditional Services A OWNER shall pay ENGINEER for Additional 4. The portion of the Lump Sum amount Services as follows: billed for ENGINEER's services will be based upon ENGINEER's estimate of the proportion of 1. General. For services of ENGINEER's Page i of 3 pages Exhibit C - Payment to Engineer Ll �111 Ll employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under paragraph A2.01.A.20, an amount equal to the cumulative hours charged to the Project by each ENGINEER's employees times the ENGINEER's applicable Salary Costs times a Factor of 2.35, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. 2. Serving as a Witness. For services performed by ENGINEER's employees as witnesses giving testimony in any litigation, arbitration, or other legal or administrative proceeding under paragraph A2.01.A20, at the rate of $1,500.00 per day or any portion thereof (but compensation for time spent in preparing to testify in any such litigation, arbitration, or proceeding will be on the basis provided in paragraph C4.03.A 1). Compensation for ENGINEER's Consultants for such services will be on the basis provided in paragraph C4.05. C4.04 For Reimbursable Expenses A When not included in compensation for Basic Services under paragraph C4.01, OWNER shall pay ENGINEER for Reimbursable Expense at the rate set forth in Appendix 1 of this Exlubit C. B. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; obtaining bids or proposals from Contractor(s); providing and maintaining field office facilities including furnishings and utilities; subsistence and transportation of Resident Project Representative and their assistants; toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project- related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER, overtime work requiring higher than regular rates. In addition, if authorized in advance by OWNER, Reimbursable Expenses will also include expenses incurred for computer time and the use of other highly specialized equipment. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Projcct- related internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of 1.10. D. The Reimbursable Expenses Schedule will be adjusted annually (as of January 15) to reflect equitable changes in the compensation payable to ENGINEER- C4.05 For ENGINEER's Consultant's Charges A- 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. For budgetary purposes the consultant charges, including the factor, are estimated as follows: Geotechnical Preliminary Design Phase 5 18,000.00 Construction Phase 5 30,000.00 Surveys Preliminary Design Phase 5 40,000.00 Construction Phase $ 4,500.00 C4.06 Salary Costs A Salary Costs means salaries and wages paid to ENGINEER's employees plus the cost of customary and statutory benefits including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation, and holiday pay applicable thereto. B. The Salary Costs and the Factor applied to Salary Costs will be adjusted annually (as of January 15) to reflect equitable changes in the compensablc payable to ENGINEER- C4.06 Factors . A The Salary Costs Factor includes the cost of general and administrative overhead which includes salaries and wages of principals and employees engaged in business operations not directly chargeable to projects, plus non - Project operating costs, including but not limited to, business taxes, legal, rent, utilities, office supplies, insurance, and other operating costs; plus operating margin or profit. ® Page 2 of 3 pages Exhibit C - Payment to Engineer 1-11 B. External Reimbursable Expenses and ENGINEER's Consultant's Factors include ENGINEER's overhead and profit associated with ENGINEER's responsibility for the administration of such services and costs. C4.07 Other Provisions Concerning Payment A. Preparation of Invoices. The portion of the amounts billed for ENGINEER's services which are identified in paragraphs C4.02 and C4.03 will be based on the applicable Salary Costs for the cumulative hours charged to the Project during the billing period by all of ENGINEER's employees, times the Salary Costs factor, plus Reimbursable Expenses and ENGINEER's Consultant's charges incurred, if any. B. Extended Contract Times. Should the Contract Times to complete the Work be extended beyond the period identified in paragraph C4.01, payment for ENGINEER's services on the basis of the Salary Costs Times a Factor Method of Payment shall be continued. C. Estimated Compensation Amounts 1. ENGINEER's estimate of the amounts that will become payable for Basic Services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to ENGINEER under the Agreement. 2. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to ENGINEER that a compensation amount thus estimated will be exceeded, ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and ENGINEER shall review the matter of services remaining to be performed and compensation for such services. OWNER shall either agree to such compensation exceeding said estimated amount or OWNER and ENGINEER shall agree to a reduction in the remaining services to be rendered by ENGINEER, so that total compensation for such services will not exceed said estimated amount when such services are completed. If ENGINEER exceeds the estimated amount before OWNER and ENGINEER have agreed to an increase in the compensation due ENGINEER or a reduction in the remaining services, the ENGINEER shall be paid for all services rendered hereunder. Page 3 of 3 pages Exhibit C - Payment to Engineer E 171 EJ This is Appendix 1 to EXHIBIT C, consisting of 1 page, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Reimbursable Expenses Schedule Current agreements for engineering services stipulate that the Reimbursable Expenses are subject to review and adjustment per Exhibit C. Reimbursable expenses when authorized under Paragraph C4.03 for services performed on the date of the Agreement are: 8 "x11" Copies/Impression $ 0.10/page Blue Print Copies 0.14 /sq. ft Reproducible Copies (Mylar) 1.00 /sq. ft. Reproducible Copies (Paper) 0.85 /sq. ft. Mileage (auto) 0.31/mile CAD Charge 20.00/hour CAE Terminal Charge 20.00/hour Long Distance Phone Calls at cost Meals and Lodging at cost Page 1 of I pages Appendix 1 to Exhibit C - Reimbursable Expenses Schedule r1 L This is EaHMIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER NOTICE OF ACCEPTABILITY OF WORK PROJECT: OWNER: OWNER's Construction Contract Identification: EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT: CONSTRUCTION CONTRACT DATE: ENGINEER: To: OWNER And To: CONTRACTOR The undersigned 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. $y:_ Title: Dated: • Page 1 of 2 pages Exhibit E - Notice of Acceptability of Work 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. 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 construction of the Project (including observation of the CONTRACTOR's work) under ENGINEER's Agreement with OWNER and under the "Construction Contract referenced on the reverse hereof; and applies only to facts that are within ENGINEER's knowledge or could reasonably have been ascertained by ENGINEER as a result of carrying out the responsibilities specifically assigned to ENGINEER under ENGINEER's Agreement with OWNER and the Construction Contract referenced on the reverse hereof. 5. Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Construction Contract referenced on the reverse hereof nor an assumption of responsibility for any failure of CONTRACTOR to furnish and perform the Work thereunder in accordance with the Contract Documents. • Page 2 of 2 pages Exhibit E - Notice of Acceptability of Work This is F-X H MIT G, consisting of 2 pages, referred to in and part of the 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. 66.05 Insurance A The limits of liability for the insurance required by paragraph 6.05.A and 6.05.13 of the Agreement are as follows: 1. By ENGINEER: a. Workers' Compensation: b. Employer's Liability — 1) Each Accident: 2) Disease, Policy Limit: 3) Disease, Each Employee: c. General Liability — 1) Each Occurrence (Bodily Injury. and Property Damage): 2) General Aggregate: d. Excess or Umbrella Liability — 1) Each Occurrence: 2) General Aggregate: e. Automobile Liability — 1) Combined Single Limit (Bodily Injury and Property Damage): Each Accident Page 1 of 2 pages Exhibit G - Insurance Statutory $1,000,000 $1,000,000 $1,000,000 $1,000,000 $2,000,000 $1,000,000 $1,000,000 $1,000,000 Ll 2. By OWNER Owner is not providing insurance for this project. Page 2 of 2 pages Exhibit G - Insurance C This is EXHIBIT H, consisting of 1 page, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Dispute Resolution Paragraph 6.09 of the Agreement is amended and supplemented to include the following agreement of the parties: H6.09 Dispute Resolution A OWNER and ENGINEER agree that they shall first submit any and all unsettled-claims, counterclaims, disputes, and other matters in question between them arising out of or relating to this Agreement or the breach thereof ("Disputes") to mediation by a mutually agreed upon mediator. ® Pagc 1 of 1 pages Exhibit II - Dispute Resolution .7 Allocation of Risks This page is intentionally left blank. This is Exhibit "I" consisting of I page, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Page I of I Exhibit I -- Allocation of Risks Initial: OWNER:_ ENGINEER: :7 SUPPLEMENTARY CONDITIONS TO THE STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES FOR THE 1999 MUNICIPAL STREET REHABILITATION PROJECT These supplemental conditions shall supersede and control over the Terms and Conditions of Agreement between OWNER and ENGINEER for Professional Services for the construction of the 1999 Municipal Street Rehabilitation Project and the associated construction documents to the extent that there is conflict. 1. Page 1, ls` Paragraph shall read as follows: THIS IS AN AGREEMENT, effective as of , 1999, between CITY OF BAYTOWN ( "OWNER ") and WAYNE SMITH AND ASSOCIATES, INC. ( "ENGINEER "). Owner intends to CONSTRUCT THE 1999 MUNICIPAL STREET REHABILITATION PROJECT ( "Project "), more particularly detailed in Exhibit "K" which is attached hereto and incorporated herein for all intents and purposes. OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agreed as follows: 2. Paragraph 3.02.A shall read as follows: If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if ENGINEER's services are delayed through no fault of ENGINEER, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. 3. Paragraph 4.01.0 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 claim against OWNER for any such expenses. 4. Paragraph 4.02.13 shall read as follows: Invoices are due and payable within 30 days after the receipt thereof. If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice therefor, the amounts due ENGINEER will be increased at the rate of 1.0% per month (or the maximum permitted rate permitted by law, if less) after the 30th day. ENGINEER may after giving seven days written notice to OWNER suspend services under this Agreement until ENGINEER has been paid in full all amounts due for 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 withheld in accordance with 3.02.0 and that ENGINEER will not suspend services under the agreement on account of Engineer's Initials Owner's Initials Ll �1 �J Supplementary Conditions to the Standard Form of Agreement between Owner and Engineer for Professional Services for the 1999 Municipal Street Rehabilitation Project Page 2 a disputed invoice or on account of monies withheld. All payments will be credited first - to principal and then to interest. 5. Paragraph 4.02.E shall read as follows: Records of ENGINEER's cost 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. 6. Paragraph 6.01.E shall read as follows: 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. 7. Paragraph 6.01.H shall read as follows: 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. 8. Paragraph 6.01.J. shall read as follows: ENGINEER neither guaran tees 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. 9. Paragraph 6.0l.L shall read as follows: The General Conditions for any construction contract documents prepared hereunder are to be the Standard. General Conditions of the Construction Contract as prepared by ENGINEERS Joint Contract Documents Committee (Document No. 1910 -8, 1996 Edition) and as modified by OWNER. 10. Paragraph 6.04.A. shall read as follows: Upon execution of this Agreement, the ENGINEER grants to the Owner an ownership interest in the Instruments of Service. The ENGINEER shall obtain similar interests from the Owner and the ENGINEER's 'consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the ENGINEER shall be required to tender to Owner all Instruments of Service; provided Owner has paid all monies, excluding any disputed amount, due and owing to ENGINEER in accordance with this Agreement. S Engineer's Initial Owncr's Initials 11 Supplementary Conditions to. the Standard Form of Agreement between Owner and Engineer. for Professional Services for the 1999 Municipal Street Rehabilitation Project Page 3 With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes which the OWNER sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and /or repairs of the Project. As a condition to the OWNER's use of the Instruments of Service, the OWNER hereby expressly agrees to remove the ENGINEER's name and all references to the ENGINEER, and its consultants 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 6.2 shall be for the benefit of the ENGINEER, its officers, and employees, as well as their successors and assigns. 11. The first sentence of Paragraph 6.043 shall read as follows: Copies of OWNER - fumished data that may be relied. upon by ENGINEER are limited to the printed copies that are delivered to ENGINEER pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. 12. Paragraph 6.041 shall read as follows: 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 from any liability associated solely with the reuse of the Documents. 13. Paragraph 6.05, subparagraphs B, C, D, and E shall be deleted. 14. Paragraph 6.06.A shall be amended to read as follows: The obligations hereunder may be terminated: 1. For cause, a. by either party upon 30 days written notice in the event of a substantial 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 responsibilities 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 with no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period and if such party has ® diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure Engineer's Initials Owner's Initials Supplementary Conditions to the Standard Form of Agreement between Owner and Engineer for Professional Services for the 1999 Municipal Street Rehabilitation Project Page 4 period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2 For convenience by OWNER effective upon the receipt of notice by ENGINEER. 15. Delete Paragraph 6.06.B in its entirety. 16. Delete Paragraph 6.09 and its subparagraphs in their entireties. 17. Paragraph 6.10.B shall read as follows: 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 the Site, including type, quantity and location. 18. Paragraph 6.10.0 shall read as follows: 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. 19. Paragraph 6.1 LA, including all of its subparagraphs, shall read as follows: ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "OWNER ") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "ENGINEER "). IN THE EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER, SUCH INDEMNITY SHALL APPLY (1) TO THE FULLEST EXTENT ALLOWED BY LAW AND (11) TO THE EXTENT ALLOWED REGARDLESS OF WHETHER THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE (1) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ENGINEER. 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 Engineer's Initials_ Owner's Initials 0 C Supplementary Conditions to the Standard Form of Agreement between Owner and Engineer for Professional Services for the 1999 Municipal Street Rehabilitation Project Page 5 INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF (1) OWNER'S OWN NEGLIGENCE TO THE EXTENT ALLOWED BY LAW, WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY OR DEATH OF ENGINEER AND /OR (II) ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF OWNER. IN THE EVENT THAT ANY = ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY AND THE ENGINEER. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. 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 Paragraph 6.11 shall control and supercede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. 20. Paragraph 8.01, subparagraphs H, I and J shall be deleted. 21. Paragraph 8.02.A shall read as follows: This Agreement (consisting of pages 1 to 12, inclusive, together with the Exhibits identified above) as well as the Supplemental Conditions to this Agreement constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This agreement may only be amended supplemented, modified, or canceled by a duly executed written instrument. This agreement along with the exhibits and the supplemental conditions shall be read and construed as the same agreement. However, should there be a conflict within such documents, it is expressly Engineer's Initials Owner's Initials 11 Supplementary Conditions to the Standard Form of Agreement between Owner and Engineer for Professional Services for the 1999 Municipal Street Rehabilitation Project Page 6 understood and agreed that the terms of the Supplemental Conditions control over those of this agreement or the exhibits. 22. . Paragraph A. 1.02.C. — Note that the number of prime contractors for the Work has been established as two. 23. Replace the first sentence of Paragraph A. 1.04.5.a with the following: Make visits to the Site at intervals appropriate to the various stages of construction, 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. 24. Replace the last sentence of Paragraph A. 1.04.5.a with the following: BASED ON INFORMATION OBTAINED DURING SUCH VISITS AND SUCH OBSERVATIONS, ENGINEER will determine if Contractor's work is proceeding in accordance with Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the work. 25. The last sentence. of Paragraph A.1.04.12 shall read as follows: In rendering sucfi decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 26. Paragraph A.1.04.17 shall read as follows: 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 due diligence the Work complies with the Contract Documents, the Work is acceptable and is in compliance with the Contract documents. 27. Delete Paragraph B.2.01, subparagraph R in its entirety. 28. Paragraph C.4.0f:A.5 shall read as follows: The Lump Sum is conditioned on Contract Times to complete the Work not exceeding one year. Should the Contract Times to complete the Work be extended beyond this period, the total compensation to Engineer shall be appropriately adjusted. 29. Paragraph 4 of the Conditions of Notice of Acceptability of Work shall read as follows: 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 construction of the Project (including observation of the Contractor's work) under Engineering 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. Engineer's Initials Owner's Initials C Supplementary Conditions to.the Standard Form of Agreement between Owner and Engineer for Professional Services for the 1999 Municipal Street Rehabilitation Project Page 7 ® 30. -- Paragraph 5 of the Conditions of Notice of Acceptability of Work shall read as follows: 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 furnish and perform the work thereunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such failure and failed to ensure that the same were corrected and brought into compliance with the Contract Documents. C 31. Exhibit G should be replace with the Exhibit "G," which is attached hereto and made a part hereof for all intents and purposes. c:klh I771Enginccring% Enginccrs% WayncS mithIWSASupplcmcntalConditions062499 Engineer's Initials Owner's Initials Ll LJ ® Minimum Insurance Requirements n EXHIBIT "G" Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the ENGINEER's operations and /or performance of the work under this Agreement, whether such operations and /or performance be by the ENGINEER, its agents, -representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The 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 the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER shall include all subcontractors as additional insureds under its commercial general liability policies or . shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability (CGL) General Aggregate: $1,000,000 Products & Completed Operations: $1,000,OdO Personal & Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 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: $500,000 a. Coverage for "Any Auto." Errors & Omissions (E &0) Limit: $500,000 a. For all architects, engineers, and/or design companies. b. Claims -made form is acceptable. c. Coverage will be in force for three (3) years after project is completed. 1 L -I ® 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 (60) days' prior written notice has been given to the OWNER via certified mail, return receipt requested. The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering -all subcontractors. The following are general requirements applicable to all policies: a. AM Best Rating of A:Vll.or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. c. Liability policies will be on occurrence form. E & O can be on claims -made form. d. City of Baytown, its officials and employees are to be added as Additional Insured to liability policies. e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and /or certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to execution of this agreement. f. Upon request of and without cost to City of Baytown, loss runs of any and /or all insurance coverage shall be furnished to City of Baytown's representative. g. City of Baytown reserves the right to reject any proposal that does not meet the minimum insurance requirements outlined above. 2 1999 Municipal Street Rehabilitation Project/MUSTRDS.DOC • r1 L_J EXHIBIT "K►► • LIST OF STREETS FOR THE 1999 MUNICIPAL STREET REHABILITATION Street <Type::: R . 'From. Ward J N. Main Concrete Dyer Oak Shadows Concrete Dead End Westwood Bridges Concrete Bob Smith Midway Gulf East Asphalt First St. Alexander Lee Concrete Gentry W. Gulf Lee Concrete W.Gulf Market Carnegie Asphalt Gentry Johnston Ferry Asphalt Cedar Bayou SH 146 Foster Asphalt Dead End Bayway