Ordinance No. 8,637990722 -2
ORDINANCE NO. 8637
AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE
CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO A
CONTRACT WITH BUSCH HUTCHISON AND ASSOCIATES, INC., REGARDING THE
PREPARATION OF PLANS AND SPECIFICATIONS FOR THE STATE HIGHWAY 146
LIFT STATION AND FORCE MAIN PROJECT; AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN PURSUANT TO THE CONTRACT; MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the
City Manager and the City Clerk of the City of Baytown to execute and attest to a contract with Busch Hutchison
and Associates, Inc., regarding the preparation of plans and specifications for the State Highway 146 Lift Station
and Force Main project. A copy of said contract is attached hereto, marked Exhibit "A," and made a part hereof
for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Busch Hutchison
and Associates, Inc., for the preparation of plans and specifications for the State Highway 146 Lift Station and
Force Main project pursuant to the contract.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated §
252.048, the City Manager is hereby granted general authority to approve any change order involving a decrease
or an increase in costs of FIFTEEN THOUSAND AND NO/ 100 DOLLARS ($15,000.00) or less, subject to the
provision that the original contract price may not be increased by more than twenty -five percent (25 %) or
decreased by more than twenty -five percent (25 %) without the consent of the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 22nd day of July, 1999.
PETE C. ALFARO, Mayor
ATTEST:
y
EILEEN P. HALL; City Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SILXity Attorney
c :\MyDocuments \Council\Meetings/ July /Plans&Specs4SH 146LiftStation &ForceMain.doc
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT effective as of ( "Effective Date ")
Between
The City of Baytown ( "OWNER ")
and
Busch Hutchison and Associates, Inc. ( "ENGINEER ").
OWNER intends to construct a Lift Station and Force Main to serve the northern sector of the SH 146 Corridor.
SH 146 Lift Station and Force Main ( "Project ").
OWNER and ENGMER in consideration of their mutual covenants as set forth herein agree as follows:
EXNI8s" A
Standard Form of Agreement
Between Owner and Engineer for Professional Services
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TABLE OF CONTENTS Page
ARTICLE 1 - SERVICES OF ENGINEER .......................................................................................... ..............................3
1.01 Scope .................................................................................................................................... ..............................3
ARTICLE 2 - OWNER'S RESPONSIBILITIES ................................................................................... ..............................3
2.01 General ................................................................................................................................. ..............................3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ................................................................................................................................. ..............................3
3.02 Suspension .......................................................................................................................... ...............................
3
ARTICLE 4 - PAYMENTS TO ENGINEER ....................................................................................... ...............................
3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ...............................
3
4.02 Other Provisions Concerning Payments .......................... ...............................
ARTICLE 5 - OPINIONS OF COST ...................................................................................................... ..............................4
5.01 Opinions of Probable Construction Cost ........................................................................... ............................... 4
5.02 Designing to Construction Cost Limit ................................................................................ ..............................4
5.03 Opinions of Total Project Costs .......................................................................................... ..............................4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................... ..............................4
6.01 Standards of Performance .................................................................................................... ..............................4
6.02 Authorized Project Representatives .................................................................................... ..............................5
6.03 Design without Construction Phase Services ...................................................................... ..............................6
6.04 Use of Documents ................................................................................................................ ..............................6
6.05 Insurance ............................................................................................................................. ...............................
6
6.06 Termination ......................................................................................................................... ...............................
7
6.07 Controlling Law ................................................................................................................... ..............................7
6.08 Successors, Assigns, and Beneficiaries .....................:.::..................................................... ..............................7
6.09 Dispute Resolution ............................................................................................................... ..............................7
6.10 Hazardous Environmental Condition .................................................................................. ..............................7
6.11 Allocation of Risks ............................................................................................................. ...............................
8
6.12 Notices ................................................................................................................................. ...............................
8
6.13 Survival ................................................................................................................................ ..............................8
6.14 Severability ......................................................................................................................... ...............................
8
6.15 Waiver .................................................................................................................................. ..............................8
6.16 Headings .............................................................................................................................. ...............................
8
ARTICLE7 - DEFINITIONS ................................................................................................................ ..............................8
7.01 Defined Terms ................................................................................................................... ...............................
8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. .............................11
8.01 Exhibits Included ................................................................................................................ .............................11
8.02 Total Agreement ................................................................................................................. .............................12
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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, extent, 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"
means a calendar day of 24 hours.
3.02 Suspension
A. (Modified) 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.
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 Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Rernnbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. The amount billed in each invoice
will be calculated as set forth in Exhibit C.
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B. (Modified) Payment of Invoices. 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 rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days written
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
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 diputed and withheld in
accordance with 3.02.0 and that ENGINEER will not
suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
payments will be credited first to principal and then to
interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination.
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 4.02.13.1, 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 Exhibit C.
E. (Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. 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 will 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 standard of care for all professional engineering
and related services performed or furnished by ENGINEER
under this Agreement will be the care and skill ordinarily used
by members of ENGINEER's profession practicing under
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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 therefrom,
and OWNER shall not be responsible for discovering
deficiencies therein. ENGINEER shall correct such
deficiencies without additional compensation except to the
extent such action is directly attributable to deficiencies in
OWNER - 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 furnishing 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. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the terns of any such
requested notice or certification, and OWNER shall authorize
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested.
H. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify, guarantee or
warrant the existence of conditions whose existence
ENGINEER cannot ascertain; provided, that ENGINEER has
exercised due diligence and was not otherwise required to
certify, guarantee or warrant the existence of such conditions.
I. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility for
the means, methods, techniques, sequences, or procedures of
construction selected by Contractor, for safety precautions
and programs incident to the Contractor's work in progress,
nor for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. ENGINEER shall not be responsible for the acts or
omissions of any Contractor(s), subcontractor or supplier, or
of any of the Contractor's agents or employees or any other
persons (except ENGINEER's own employees) at the Site or
otherwise furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the "Standard General Conditions of the Construction
Contract" as prepared by the Engineers Joint Contract
Documents Committee (Document No. 1910 -8, 1996 Edition)
and as modified by OWNER.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
fumished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
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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.
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. (Modified) Upon exxecutin of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants 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.
B. (Modified) Copies of OWNER- furnished 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. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
Any errors 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. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
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."
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B. Not used..
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than those specified in Exhibit G. If
so requested by OWNER, with the concurrence of
ENGINEER, and if commercially available, ENGINEER
shall obtain and shall require ENGINEER's Consultants to
obtain such additional insurance coverage, different limits, or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 Termination
A. (Modified) The obligations hereunder 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; or
b. By ENGINEER upon seven days written
notice if ENGINEER is being requested by OWNER
to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof; provided, however, that if
and to the extent such substantial failure cannot be
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the 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
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.13 the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
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A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on. or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," "operator," "generator," or "transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the 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. (Modified) Indemnification. See Exhibit K.
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 unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and ENGINEER, who
agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the
intention of the stricken provision.
6.15 Waiver
A. Non - enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
1. Addenda- -Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
change the Bidding Documents.
2. Additional Services - -The services to be
performed for or 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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
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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 levels established
by the United States Occupational Safety and Health
Administration.
6. Basic Services - -The services to be performed
for or famished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid- -The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. Bidding Documents - -The advertisement or
invitation to Bid, instructions to bidders, the Bid form
and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
9. Change Order - -A document recommended by
ENGINEER, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
the Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effeetive Date of
the Construction Agreement.
10. Construction Agreement - -The written
instrument which is evidence of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract - -The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. Construction Cost - -The cost to OWNER of
those portions of the entire Project designed or specified
by ENGINEER. Construction Cost does not include
costs of services of ENGINEER or other design
professionals and consultants, cost of land, rights -of -way,
or compensation for damages to properties, or OWNER's
costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges
incurred in connection with the Project, or the cost of
other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement. Construction
Cost is one of the items comprising Total Project Costs.
13. Contract Documents -- Documents that establish
the rights and obligations of the parties engaged in
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.
14. Contract Price - -The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated in
the Construction Agreement.
15. Contract Times - -The numbers of days or the
dates stated in the Construction Agreement to:
(i) achieve 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
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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 are not
Drawings as so defined.
21. Effective Date of the Construction Agreement- -
The date indicated in the Construction Agreement on
which it becomes effective, but if no such date is
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
22. Effective Date of the Agreement - -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants -- Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
24. Field Order - -A written order issued by
ENGINEER which directs minor changes in the Work
but which does not involve a change in the Contract Price
or the Contract Times.
25. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
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- -
Any 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 -- Source, special nuclear,
or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.
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 by Contractor to show changes made during
construction.
33. Reimbursable Expenses - -The expenses incurred
directly by ENGINEER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
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 die
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
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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 some 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
fumished 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 Completion- -The time at which the
Work (or a specified part thereof) has progressed to the
point where, in the opinion of ENGINEER, the Work (or
a specified part thereof) is sufficiently complete, in
accordance with the Contract Documents, so that the
Work (or a specified part thereof) can be utilized for the
purposes for which it is intended. The terms
"substantially complete" and "substantially completed"
as applied to all or part of the Work refer to Substantial
Completion thereof.
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 -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.
42. Work - -The entire completed construction or the various
separately identifiable parts thereof required to be provided
under the Contract Documents with respect to this Project.
Work includes and is the result of performing or furnishing
labor, services, and documentation necessary to produce such
construction and furnishing, installing, and incorporating all
materials and all equipment into such construction, all as
required by the Contract Documents.
43. Work Change Directive - -A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of 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 - engineering or non - technical rather than strictly
construction- related aspects of the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "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 pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative," is not used.
E. Exhibit E, "Notice of Acceptability of Work,"
consisting of two (2) pages.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
Exhibit I, "Allocation of Risks," is not used.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 12
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J. Not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
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. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER:
CITY OF BAYTOWN
By:
Title: CITY MANAGER
Date Signed:
Address forgiving notices:
P.O. BOX 424
Baytown, Texas 77422 -0424
Designated Representative (paragraph 6.02.A):
Howard W. Wellsr)rine III. P.E.
Title: City Engineer
Phone Number: (281) 420 -6545
Facsimile Number: (281) 420 -6586
E -Mail Address: hwwelispringpbaytown.org
ENGINEER:
By:
Title:
Date Signed:
Address forgiving notices:
Designated Representative (paragraph 6.02.A):
Title:
Phone Number:
Facsimile Number:
E -Mail Address:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
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This is EXHIBIT A, consisting of
and part of the Agreement
ENGINEER for Professional
ENGINEER's Services
_8_ pages, referred to in
between OWNER and
Services dated
Initial:
OWNER
ENGINEER
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 (Modified)
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 are 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 environmental assessment.
4. Identify and evaluate potential solutions available to OWNER and, after consultation with OWNER,
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. Prepare a report (the "Report") which will, as appropriate, contain schematic layouts, sketches and
conceptual design criteria with appropriate exhibits 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 furnished
by OWNER, allowances for other items and services included within the definition of Total Project Costs.
7. Furnish three (3) review 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.
Page 1 of 8 Pages
(Exhibit A - ENGINEER's Services)
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B. ENGINEER's services under the Preliminary Design Phase will be considered complete on the date when
the final copies of the revised Report have been delivered to OWNER.
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 acceptance, direction, and authorization, 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 A1.0I.A.5.
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 3 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within ninety (90) days after authorization to proceed with this phase.
B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more
than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more
prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to commencement of the
Final Design Phase, develop a schedule for performance of ENGINEER's services during the Final Design, Bidding or
Negotiating, Construction, and Post - Construction Phases in order to sequence and coordinate properly such services as
are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or
become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by ENGINEER upon which 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.
A 1.03 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 bidders 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.
Page 2 of 8 Pages
(Exhibit A - ENGINEER's Services)
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2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
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. General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and
authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may
otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who
shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this
Agreement and said General Conditions except as otherwise provided in writing.
2. Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing
laboratory to perform the services identi fied 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. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction and
as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design
professional the progress and quality of the Work. Such visits and observations by ENGINEER, and the
Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the
responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather
are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work
based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative,
if any. Based on information obtained during such visits and such observations, ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep
OWNER informed of die 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
Page 3 of 8 Pages
(Exhibit A - ENGINEER's Services)
C
and undertaken by ENGINEER during the Construction Phase, and, in addition, by the exercise of
ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater
degree of confidence that the completed Work will 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 furnish 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. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.02.A.2 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 Documents and will not constitute an
independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the
requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the
requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In
rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor.
13. 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)
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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 any
other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled
to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe
Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include
final determinations of quantities and classifications of Contractor's work (subject to any subsequent
adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph
A1.05.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 extent of
such ENGINEER's review will be limited as provided in paragraph A 1.05.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. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to
Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the
form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to the best of ENGINEER's
knowledge, information and belief and upon the exercise of due diligence the Work complies with the Contract
Documents, the Work is acceptable and is in compliance with the Contract documents.
Page 5 of 8 Pages
(Exhibit A - ENGINEER's Services)
11
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 Work. 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 OWNER, 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 - Construction 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 OWNER's Authorization 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
review 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.
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,
Page 6 of 8 Pages
(Exhibit A - ENGINEER's Services)
C
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 A 1.0I.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 attributable to more prime construction contracts than specified in paragraph A 1.03.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 constructibility 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.
18. Preparing and furnishing to OWNER Record Drawings showing appropriate record information based on
Project annotated record documents received from Contractor.
19. Preparation of operation and maintenance manuals.
Page 7 of 8 Pages
(Exhibit A - ENGINEER's Services)
C
20. Preparing to serve or serving as a consultant or witness for OWNER in any 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 6.01.G of the Agreement.
22. Other services performed or furnished 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 construction made necessary by (1) emergencies or acts of God
endangering the Work, (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)
LI,
u
This is EYJUBIT B, consisting of 3 pages, 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 fumish 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 ENGINEER'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, easement, 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 consultations as required for the Project but not otherwise identified in the Agreement or the
Exhibits thereto.
D. Give prompt written notice to ENGINEER whenever 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
required.
Page 1 of 3 Pages
(Exhibit B - OWNER's Responsibilities)
Ll
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.
I. 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 ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructibility review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs 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 awarded for the Work designed or specified by ENGINEER,
designate a person or entity to have authority and responsibility 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 pre -bid conference, bid opening, pre - construction conferences, construction progress and other job
related meetings, and Substantial Completion and final payment inspections.
0. Provide the services 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.
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:
Page 2 of 3 Pages
(Exhibit B - OWNER's Responsibilities)
Ll
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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. Not used.
Page 3 of 3 Pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of _4_ pages, referred to
in and part of the Agreement between OWNER and
ENGINEER for Professional Services dated
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope -- Percentage of Construction Cost
Method of Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A, except for services
of ENGINEER's Resident Project Representative
and Post - Construction Phase services, if any, as
follows:
1. General. An amount equal to nine (9)
percent of the Construction Cost. This amount
includes compensation for ENGINEER's
Services and services of ENGINEER's
Consultants, if any. The percentage of
Construction Cost noted herein accounts for
labor, overhead, profit, and Reimbursable
Expenses. The total compensation for services
under paragraph C4.01 is estimated to be
$45,000.
2. As a basis for payment to ENGINEER,
Construction Cost will be based on one or more
of the following determinations with precedence
in the order listed for Work designed or
specified by ENGINEER:
a. For Work designed or specified
and incorporated in the completed Project,
the actual final cost of the work performed
by Contractor and paid by OWNER.
b. For Work designed or specified
but not constructed, the lowest bona fide
Bid received from a qualified bidder for
Initial:
OWNER
ENGINEER
such Work; or, if the Work is not Bid, the
lowest bona fide negotiated proposal for
such Work.
c. For Work designed or specified
but not constructed upon which no such Bid
or proposal is received, ENGINEER's most
recent opinion of probable Construction
Cost.
d. Labor furnished by OWNER for
the Project will be included in the
Construction Cost at current market rates
including a reasonable allowance for
overhead and profit. Materials and
equipment furnished by OWNER will be
included at current market prices.
e. No deduction is to be made from
ENGINEER's compensation on account of
any penalty, liquidated damages, or other
amounts withheld from payments to
Contractor(s).
3. Progress payments:
a. The portion of the amounts billed
for ENGINEER's services which is on
account of the Percentage of Construction
Cost will be based upon ENGINEER's
estimate of the proportion of the total
services actually completed during the
billing period to the Percentage of
Construction Cost.
b. Upon conclusion of each phase of
Basic Services, OWNER shall pay such
additional amount, if any, as may be
necessary to bring total compensation paid
during such phase on account of the
percentage of Construction Cost to the
Page of pages
(Exhibit C - Basic Services With Determined Scope -- Percentage of
Sheet C -1 Construction Cost Method of Payment)
E
11
following estimated percentages of total
compensation payable on account of the
® percentage of Construction Cost for all
phases of Basic Services:
Study and Report Phase
0 %
Preliminary Design Phase
25 %
Final Design Phase
50 %
Bidding or Negotiating Phase
10 %
Construction Phase
15 %
100%
c. ENGINEER may alter the
distribution of compensation between
individual phases of the work noted herein
but shall not exceed the total percent fee
unless approved in writing by the OWNER.
4. ENGINEER's estimated total
compensation is conditioned on Contract Times
to complete the Work not exceeding twelve (12)
months. Should the Contract Times to
complete the Work be extended beyond this
period, the total compensation to ENGINEER
shall be appropriately adjusted.
5. If more prime contracts are awarded
for Work designed or specified by ENGINEER
for the Project than identified in Exhibit A,
ENGINEER shall be compensated an additional
amount equal to N/A percent of the
Construction Cost for all Basic Services for
each prime contract added.
C4.02 For Basic Services Having An Undetermined
Scope — Salary Costs Times a Factor Method
ofPayment
A. OWNER shall pay ENGINEER for:
1. (Not Used)
2. Post - Construction Phase Services. For
Post - Construction Phase services under
paragraph A1.06 of Exhibit A, an amount equal
to the ENGINEER's Salary Costs times a factor
of 2.35 for 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
0 $4,000.00.
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for
Additional Services as follows:
1. General. For services of
ENGINEER's employees engaged directly on
the Project pursuant to paragraph A2.01 or
A2.02 of Exhibit A, except for services as a
consultant or witness under paragraph
A2.0l.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
Page of pages
(Exhibit C - Basic Services With Determined Scope -- Percentage of
Sheet C -2 Construction Cost Method of Payment)
E
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witnesses giving testimony in any litigation,
arbitration, or other legal or administrative
® proceeding under paragraph A2.01.A.20, at the
rate of $800.00 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. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expense.
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 Project - related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of 1.1.
D. The Reimbursable Expenses Schedule will
be adjusted annually (as of June 15) to reflect
equitable changes in the compensation payable to
ENGINEER.
C4.05 For ENGINEER's Consultant's Charges
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be
the amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of 1.0. For budgetary
purposes the consultant charges, including the
factor, are estiamted as follows:
Geotechnical $1,500
Surveys $6,000
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 June
15) to reflect equitable changes in the compensable
payable to ENGINEER.
C4.07 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.
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.
C4.08 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
J
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.
C
This is EXHIBIT E, consisting of 2 pages, referred to in
and part of the Agreement between OWNER and
® ENGINEER for Professional Services dated
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To: OWNER
And To:
CONTRACTOR
Initial:
OWNER
ENGINEER
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.
0
Title:
Dated:
Page 1 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
E
(Reverse side of Notice)
0 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:
Said Notice is given with the skill and care ordinarily used by members of the engineering profession
practicing under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR'S work) under ENGINEER's Agreement with OWNER and applies to facts that are
within ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of
carrying out the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with
OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish and
perform the work therunder 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.
Page 2 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
C
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This is EXHIBIT 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.
G6.05 Minimum Insurance Requirements
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: $1,000,000
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.
Page 1 of 2 Pages
(Exhibit G - Insurance)
�1
LJ
.7
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:VII 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
E
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This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated ,
Initial:
OWNER
ENGINEER
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 (I) TO THE FULLEST
EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT
ALLOWED REGARDLESS OF WHETHER THE CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR
LIABILITY ARISE (I) 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
INDEMNIFY AND PROTECT OWNER FROM THE
CONSEQUENCES OF (I) 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
Page 1 of 2 Pages
(Exhibit K - Indemnification)
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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
supersede any apportionment of liability or release of liability contained elsewhere
in the Contract Documents.
Page 2 of 2 Pages
(Exhibit K - Indemnification)
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