Ordinance No. 8,84120000224 -2
ORDINANCE NO. 8841
AN ORDINANCE AUTHORIZING A CONTRACT BETWEEN BAYTOWN AREA WATER
AUTHORITY AND WATER TANK SERVICE COMPANY FOR THE DEMOLITION OF THE
BAYWAY GROUND STORAGE TANK AND LIME TREATMENT FACILITY AT BAWA;
AUTHORIZING PAYMENT OF THE CITY'S SHARE OF THE PROJECT IN THE SUM OF
TWELVE THOUSAND THREE HUNDRED NINETY AND NO /100 DOLLARS ($12,390.00);
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 hereby authorizes the Contract between Baytown
Area Water Authority and Water Tank Service Company for the demolition of the Bayway Ground Storage Tank and
Lime Treatment Facility at BAWA, said contract containing the plans, specifications, and requirements of the City's
Engineer and appropriate bond requirements in accordance with the provisions of Texas Government Code, Chapter
2253.
Section 2: That the City Council of the City of Baytown authorizes payment to Water Tank Service
Company of the city's share of the project in the sum of TWELVE THOUSAND THREE HUNDRED NINETY AND
NO 1100 DOLLARS ($12,390.00).
Section 3: That the administration is authorized to contract for utility adjustments, laboratory testing, and
other professional services necessary to the operation and completion of the project.
Section 4: 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 TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) 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 24th day of February, 2000.
�
PETE C. ALFARO, Ma or
ATTEST:
GAR W. ITHCity Clerk
APPROVED AS TO FORM:
dl7fiACIO RAMIREZ, qVCity Attorney
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TABLE OF CONTENTS pale
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
.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER.............................................3
4.02 Other Provisions Concerning Payments............................................................................................................3
ARTICLE5-OPINIONS OF COST...............:....................................................................................................................4
5.01 Opinions of Probable Construction Cost..........................................................................................................4
5.02 Designing to Construction Cost Limit..............................................................................................................4
5.03 Opinions of Total Project Costs........................................................................................................................4
ARTICLE 6-GENERAL CONSIDERATIONS.................................................................................................................4
6.01 Standards of Performance..................................................................................................................................4
6.02 Authorized Project Representatives..................................................................................................................5
6.03 Design without 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1 -SERVICES OF ENGINEER 3.02 Suspension
A.(Modified) If OWNER fails within a reasonable
1.01 Scope period of time to give written authorization to proceed with
any phase of services after completion of the immediately
A. ENGINEER shall provide the Basic and Additional preceding phase, or if ENGINEER's services are delayed
Services set forth herein and in Exhibit A. through no fault of ENGINEER, ENGINEER may, after
giving seven days written notice to OWNER, suspend
B. Upon this Agreement becoming effective, services under this Agreement.
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A. B. If ENGINEER's services are delayed or suspended
in whole or in part by OWNER, or if ENGINEER's services
C. If authorized by OWNER, ENGINEER shall are extended by Contractor's actions or inactions for more
furnish Resident Project Representative(s) with duties, than 90 days through no fault of ENGINEER, ENGINEER
responsibilities and limitations of authority as set forth in shall be entitled to equitable adjustment of rates and amounts
Exhibit D. of compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
ARTICLE 2-OWNER'S RESPONSIBILITIES connection with, among other things, such delay or
suspension and reactivation and the fact that the time for
2.01 General performance under this Agreement has been revised.
ARTICLE 4-PAYMENTS TO ENGINEER
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
4.01 Methods of Payment for Services and
ARTICLE 3-TIMES FOR RENDERING SERVICES Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
3.01 General Part 1,as set forth in Exhibit C.
A. ENGINEER's services and compensation under this B. For Additional Services. OWNER shall pay
Agreement have been agreed to in anticipation of the orderly ENGINEER for Additional Services performed or furnished
and continuous progress of the Project through completion. under Exhibit A, Part 2,as set forth in Exhibit C.
Unless specific periods of time or specific dates for providing
services are specified in this Agreement, ENGINEER's C.(Modified) For Reimbursable Erpenses. In
obligation to render services hereunder will be for a period addition to payments provided for in paragraphs 4.01.A and
which may reasonably be required for the completion of said 4.01.13, OWNER shall pay ENGINEER for Reimbursable
services. Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
B. If in this Agreement specific periods of time for associated with meals and lodging must be approved in
rendering services are set forth or specific dates by which writing by OWNER prior to ENGINEER incurring any
services are to be completed are provided,and if such periods expense associated therewith; otherwise, the parties hereto
of time or dates are changed through no fault of ENGINEER, agree and understand that OWNER shall not be liable and
the rates and amounts of compensation provided for herein ENGINEER shall not make a claim against OWNER for any
shall be subject to equitable adjustment. If OWNER has such expenses.
requested changes in the scope, extent, or character of the
Project, the time of performance of ENGINEER's services 4.02 Other Provisions Concerning Payments
shall be adjusted equitably.
A. Preparation of Invoices. Invoices will be prepared
C. For purposes of this Agreement the term "day" in accordance with ENGINEER's standard invoicing
means a calendar day of 24 fours. practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. 1-he amount billed in each invoice
will be calculated as set forth in Exhibit C.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
F. Legislative Actions. In the event of legislative
B.(Modified) Payment of Invoices. Invoices are due actions after the Effective Date of the Agreement by any level
and payable within 30 days after the receipt thereof. If of government that impose taxes, fees, or costs on
-OWNER fails to make any payment due ENGINEER for ENGINEER's services or other costs in connection with this
services and expenses within 30 days after receipt of Project or compensation therefor, such new taxes, fees, or
ENGINEER's invoice therefor,the amounts due ENGINEER costs shall be invoiced to and paid by OWNER as a
will be increased at the rate of 1.0% per month (or the Reimbursable Expense to which a Factor of 1.0 shall be
maximum rate of interest permitted by law, if less) after the applied. Should such taxes, fees, or costs be imposed, they
30th day. ENGINEER may after giving seven days written shall be in addition to ENGINEER's estimated total
notice to OWNER suspend services under this Agreement compensation.
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. However, it is ARTICLE 5-OPINIONS OF COST
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 5.01 Opinions of Probable Construction Cost
accordance with 3.02.0 and that ENGINEER will not
suspend services under the agreement on account of a A. ENGINEER's opinions of probable Construction
disputed invoice or on account of monies withheld. All Cost provided for herein are to be made on the basis of
payments will be credited first to principal and then to ENGINEER's experience and qualifications and represent
interest. ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. However,
C. Disputed Invoices. In the event of a disputed or since ENGINEER has no control over the cost of labor,
contested invoice, only that portion so contested may be materials,equipment, or services furnished by others, or over
withheld from payment, and the undisputed portion will be the Contractor's methods of determining prices, or over
paid. competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids, or actual
D. Payments Upon Termination. Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER. If OWNER
1. In the event of any termination under wishes greater assurance as to probable Construction Cost,
paragraph 6.06, ENGINEER will be entitled to invoice OWNER shall employ an independent cost estimator as
OWNER and will be paid in accordance with Exhibit provided in Exhibit B.
C for all services performed or furnished and all
Reimbursable Expenses incurred through the effective 5.02 Designing to Construction Cost Limit
date of termination.
A. If a Construction Cost limit is established between
2. In the event of termination by OWNER for OWNER and ENGINEER, such Construction Cost limit and
convenience or by ENGINEER for cause, ENGINEER, a statement of ENGINEER's rights and responsibilities with
in addition to invoicing for those items identified in respect thereto will be specifically set forth in Exhibit F,
subparagraph 4.02.13.1, shall be entitled to invoice "Construction Cost Limit,"to this Agreement.
OWNER and shall be paid a reasonable amount for
services and expenses directly attributable to termination, 5.03 Opinions of Total Project Costs
both before and after the effective date of termination,
such as reassignment of personnel, costs of terminating A. ENGINEER assumes no responsibility for the
contracts with ENGINEER's Consultants, and other accuracy of opinions of Total Project Costs.
related close-out costs, using methods and rates for
Additional Services as set forth in Exhibit C. ARTICLE 6-GENERAL CONSIDERATIONS
E.(Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's 6.01 Standards of Performance •
compensation under this Agreement shall be kept in
accordance with generally accepted. accounting practices. A. Tile standard of care for all professional engineering
Copies of such records will be made available to OWNER and related services performed or furnished by ENGINEER
upon request at no cost to OWNER. under this Agreement will be the care and skill ordinarily used
by members of ENGINEER's profession practicing under
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
similar circumstances at the same time and in the same such Additional Services as are necessary to enable
locality. ENGINEER makes no warranties, express or ENGINEER to provide the notices or certifications requested.
implied, under this Agreement or otherwise, in connection
with ENGINEER's services. H.(Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
B. ENGINEER shall be responsible for the technical result in ENGINEER's having to certify, guarantee or
accuracy of its services and documents resulting therefrom, warrant the existence of conditions whose existence
and OWNER shall not be responsible for discovering ENGINEER cannot ascertain; provided, that ENGINEER has
deficiencies therein. ENGINEER shall correct such exercised due diligence and was not otherwise required to
deficiencies without additional compensation except to the certify,guarantee or warrant the existence of such conditions.
extent such action is directly attributable to deficiencies in
OWNER-furnished information. I. During the Construction Phase, ENGINEER shall
not supervise,direct,or have control over Contractor's work,
C. ENGINEER shall perform or furnish professional nor shall ENGINEER have authority over or responsibility for
engineering and related services in all phases of the Project to the means, methods, techniques, sequences, or procedures of
which this Agreement applies. ENGINEER shall serve as construction selected by Contractor, for safety precautions
OWNER's prime professional for the Project. ENGINEER and programs incident to the Contractor's work in progress,
may employ such ENGINEER's Consultants as ENGINEER nor-for any failure of Contractor to comply with Laws and
deems necessary to assist in the performance or furnishing of Regulations applicable to Contractor's furnishing and
the services. ENGINEER shall not be required to employ any performing the Work.
ENGINEER's Consultant unacceptable to ENGINEER.
J.(Modified)ENGINEER neither guarantees the
D. ENGINEER and OWNER shall comply with performance of any Contractor nor assumes responsibility for
applicable Laws or Regulations and OWNER-mandated any Contractor's failure to furnish and perform the Work in
standards. This Agreement is based on these requirements as accordance with the Contract Documents. However,nothing
of its Effective Date. Changes to these requirements after the contained in this paragraph shall be construed so as to absolve
Effective Date of this Agreement may be the basis for ENGINEER from liability for any such failure about which
modifications to OWNER's responsibilities or to ENGINEER knew or should have known existed in the
ENGINEER"s scope of services, times of performance, or exercise of ENGINEER's services under this Agreement.
compensation.
K. ENGINEER shall not be responsible for the acts or
E.(Modified) OWNER shall be responsible for, and omissions of any Contractor(s), subcontractor or supplier, or
ENGINEER may rely upon, the accuracy*and completeness of any of the Contractor's agents or employees or any other
of all requirements, programs, instructions, reports, data, and persons (except ENGINEER's own employees) at the Site or
other information furnished by OWNER to ENGINEER otherwise furnishing or performing any of the Contractor's
pursuant to this Agreement, unless expressly stated or work; or for any decision made on interpretations or
communicated otherwise by OWNER. ENGINEER may use clarifications of the Contract Documents given by OWNER
such requirements, reports, data, and information in without consultation and advice of ENGINEER.
performing or furnishing services under this Agreement.
L.(Modified) The General Conditions for any
F. OWNER shall make decisions and carry out its other construction contract documents prepared hereunder are to be
responsibilities in a timely manner and shall bear all costs the "Standard General Conditions of the Construction
incident thereto so as not to delay the services of ENGINEER. Contract" as prepared by the Engineers Joint Contract
Documents Committee(Document No. 1910-8, 1996 Edition)
and as modified by OWNER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations 6.02 Authorized Project Representatives
from the language indicated in Exhibit E. "Notice of
Acceptability of Work,"or of any other notice or certification A. Contemporaneous with the execution of this
that ENGINEER will be requested to provide to OWNER or Agreement, ENGINEER and OWNER shall designate
third parties in connection with the .Project. OWNER and specific individuals to act as ENGINEER"s and OWNER's
ENGINEER shall reach agreement on the terns of any such representatives with respect to the services to be perfornied or
requested notice or certification, and OWNER sliall authorize furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
to transmit instructions, receive information, and render unless otherwise expressly stated or communicated by
decisions relative to the Project on behalf of each respective OWNER. Files in electronic media format of text, data
party• graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
6.03 Design without Construction Phase Services conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
A. Should OWNER provide Construction Phase
services with either OWNER's representatives or a third C. Copies of Documents that may be relied upon b
P Y
party, ENGINEER's Basic Services under this Agreement OWNER are limited to the printed copies(also known as hard
will be considered to be completed upon completion of the copies)that are signed or sealed by the ENGINEER. Files in
Final Design Phase or Bidding or Negotiating Phase as electronic media format of text, data, graphics, or of other
outlined in Exhibit A. types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
B. It is understood and agreed that if ENGINEER's obtained or derived from such electronic files will be at the
Basic Services under this Agreement do not include Project user's sole risk.
observation, or review of the Contractor's performance, or
any other Construction Phase services, and that such services D. Because data stored in electronic media format can
will be provided by OWNER, then OWNER assumes all deteriorate or be modified inadvertently or otherwise without
responsibility for interpretation of the Contract Documents authorization of the data's creator, the party receiving
and for construction observation or review and waives any electronic files agrees that it will perform acceptance tests or
claims against the ENGINEER that may be in any way procedures within 60 days, after which the receiving PAY
connected thereto. shall be deemed to have accepted the data thus transferred.
Any errors detected within the 60-day acceptance period will
6.04 Use of Documents be corrected by the party delivering the electronic files.
ENGINEER shall not be responsible to maintain documents
A. (Modified) Upon execution of this Agreement, the stored in electronic media format after acceptance by
ENGINEER grants to the OWNER an ownership interest in OWNER.
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER"s E. When transferring documents in electronic media
consultants consistent with this Agreement. Within seven format, ENGINEER makes no representations as to long term
days of any termination or expiration of this Agreement, the compatibility, usability, or readability of documents resulting
ENGINEER shall be required to tender to OWNER all from the use of software application packages, operating
Instruments of Service; provided OWNER has paid all systems, or computer hardware differing from those used by
monies, excluding any disputed amount, due and owing to ENGINEER at the beginning of this Project.
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties F. (Modified) Any use of the Documents on any
hereto that the OWNER may use the Instruments of Service extension of the Project or on any other project shall be at
for any purposes which the OWNER sees fit, including, but OWNER's sole risk and OWNER hereby releases
not limited to, subsequent construction, reconstruction, ENGINEER from any liability associated solely with the
alteration, and/or repairs of the Project. As a condition to the reuse of the Documents.
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name G. If there is a discrepancy between the electronic files
and all references to the ENGINEER,and its consultants from and the hard copies,the hard copies govern.
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in H. Any verification or adaptation of the Documents for
connection with any reuse of the documents by the OWNER. extensions of the Project or for any other project will entitle
This release of claims for the matters covered in this ENGINEER to further compensation at rates to be agreed
Paragraph 6.2 shall be for the benefit of the ENGINEER, its upon by OWNER and ENGINEER.
officers, and employees, as well as their successors and
assigns. 6.05 Insurancc
13. (Modified) Copies of OWNER-furnished data that A. ENGINEER sliall procure and maintain insurance as
may be relied upon by ENGINEER are-limited to the printed set forth in Exhibit G,"Insurance."
copies that are delivered to ENGINEER pursuant to Exhibit B
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
B. Not used.. 2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
C. Not used.
B. Not used.
D. Not used.
6.07 Controlling Law
E. Not used.
A. This Agreement is to be governed by the law of the
F. At any time, OWNER may request that state in which the Project is located.
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles 6.08 Successors,Assigns,and Beneficiaries
that are more protective than those specified in Exhibit G. If
so requested by OWNER, with the concurrence of A.- OWNER and ENGINEER each is hereby bound and
ENGINEER, and if commercially available, ENGINEER the partners, successors, executors, administrators and legal
shall obtain and shall require ENGINEER's Consultants to representatives of OWNER and ENGINEER (and to the
obtain such additional insurance coverage, different limits, or extent permitted by paragraph 6.08.B the assigns of OWNER
revised deductibles for such periods of time as requested by and ENGINEER) are hereby bound to the other party to this
OWNER, and Exhibit G will be supplemented to incorporate Agreement and to the partners, successors, executors,
these requirements. administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
6.06 Termination obligations of this Agreement.
A.(Modified) The obligations hereunder may be B. Neither OWNER nor ENGINEER may assign,
terminated: sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
1. For cause, in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
a. By either party upon 30 days written notice transfer is mandated or restricted by law. Unless specifically
in the event of substantial failure by the other party stated to the contrary in any written consent to an assignment,
to perform in accordance with the terms hereof no assignment will release or discharge the assignor from any
through no fault of the terminating party;or duty or responsibility under this Agreement.
b. By ENGINEER upon seven days written C. Unless expressly provided otherwise in this
notice if ENGINEER is being requested by OWNER Agreement:
to furnish or perform services contrary to
ENGINEER's responsibility as a licensed 1. Nothing in this Agreement shall be construed to
professional. create, impose, or give rise to any duty owed by
OWNER or ENGINEER to any Contractor, Contractor's
c. Notwithstanding the foregoing, this subcontractor, supplier, other individual or entity, or to
Agreement will not terminate as a result of such any surety for or employee of any of them.
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice, 2. All duties and responsibilities undertaken
to correct its failure to perform and proceeds pursuant to this Agreement will be for the sole and
diligently to cure such failure within no more than exclusive benefit of OWNER and ENGINEER and not
30 days of receipt thereof;provided,however,that if for the benefit of any other party. The OWNER agrees
and to the extent such substantial failure cannot be that the substance of the provisions of this paragraph
reasonably cured within such 30 day period, and if 6.08.0 shall appear in the Contract Documents.
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same 6.09 Not Used.
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date 6.10 Hazardous Environmental Condition
of receipt of the notice;.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
A. OWNER represents to Engineer that to the best of its certified mail postage prepaid, or by a commercial courier
knowledge a Hazardous Environmental Condition does not service. All notices shall be effective upon the date of receipt.
exist.
6.13 Survival
B.(Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all A. All express representations, indemnifications, or
Asbestos, PCB's, Petroleum, Hazardous Waste, or limitations of liability included in this Agreement will survive
Radioactive Material located at or near the Site, including its completion or termination for any reason.
type,quantity and location.
6.14 Severability
C.(Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have A. Any provision or part of the Agreement held to be
the obligation to notify OWNER on or before the next void or unenforceable under any Laws or Regulations shall be
business day of the same. deemed stricken, and all remaining prov19
isions shall continue
to be valid and binding upon OWNER and ENGINEER,who
D. It is acknowledged by both parties that agree that the Agreement shall be reformed to replace such
ENGINEER's scope of services does not include any services stricken provision or part thereof with a valid and enforceable
related to a Hazardous Environmental Condition. In the event provision that comes as close as possible to expressing the
ENGINEER or any other party encounters a Hazardous intention of the stricken provision.
Environmental Condition, ENGINEER may,at its option and
without liability for consequential or any other damages, 6.15 Waiver
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate A. Non-enforcement of any provision by either party
specialist consultant(s) or contractor(s) to identify and, as shall not constitute a waiver of that provision, nor shall it
appropriate, abate, remediate, or remove the Hazardous affect the enforceability of that provision or of the remainder
Environmental Condition; and (ii)warrants that the Site is in of this Agreement.
full compliance with applicable Laws and Regulations.
6.16 Headings
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that A. The headings used in this Agreement are for general
ENGINEER is not and shall not be required to become an reference only and do not have special significance.
"arranger," "operator," "generator," or "transporter" of
hazardous substances, as defined in the Comprehensive ARTICLE 7- DEFINITIONS
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 7.01 Defined Terms
Agreement.
A. Wherever used in this Agreement (including the
F. If ENGINEER's services under this Agreement Exhibits hereto)and printed with initial or all capital letters,
cannot be performed because of a Hazardous Environmental the terms listed below have the meanings indicated, which
Condition, the existence of the condition shall justify are applicable to both the singular and plural thereof:
ENGINEER's terminating this Agreement for cause on 30
days notice. 1. tIddenda--Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
6.11 Allocation of Risks change the Bidding Documents.
A. (Modified) Indemnification. See Exhibit K. 2. .•Idditinnal Burt?ices--The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 2 of this Agreement.
6.12 Notices
3. .greement--l'his"Standard Form of Agreement
A. Any notice required under this Agreement will be in between OWNER and ENGINEER, for Professional
writing, addressed to the appropriate party at its address oil Services," including those Exhibits listed in Article 8
the signature mile and given personally, or by registered or hereof.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
pursuant to Exhibit B of this Agreement. Construction
4. Application for Payment--The form acceptable Cost is one of the items comprising Total Project Costs.
to ENGINEER which is to be used by Contractor in
requesting progress or final payments for the completion 13. Contract Documents--Documents that establish
of its Work and which is to be accompanied by such the rights and obligations of the parties engaged in
supporting documentation as is required by the Contract construction and include the Construction Agreement
Documents. between OWNER and Contractor, Addenda (which
pertain to the Contract Documents), Contractor's Bid
5. Asbestos--Any material that contains more than (including documentation accompanying the Bid and any
one percent asbestos and is friable or is releasing asbestos post-Bid documentation submitted prior to the notice of
fibers into the air above current action levels established award) when attached as an exhibit to the Construction
by the United States Occupational Safety and Health Agreement,the notice to proceed,the bonds, appropriate
Administration. certifications,the General Conditions,the Supplementary
Conditions, the Specifications and the Drawings as the
6. Basic Services--The services to be performed same are more specifically identified in the Construction
for or furnished to OWNER by ENGINEER in Agreement, together with all Written Amendments,
accordance with Exhibit A,Part 1,of this Agreement. Change Orders, Work Change Directives, Field Orders,
_and ENGINEER's written interpretations and
7. Bid--The offer or proposal of the bidder clarifications issued on or after the Effective Date of the
submitted on the prescribed form setting forth the prices Construction Agreement. Approved Shop Drawings and
for the Work to be performed. the reports and drawings of subsurface and physical
conditions are not Contract Documents.
8. Bidding Documents--The advertisement or
invitation to Bid, instructions to bidders, the Bid form 14. Contract Price--The moneys payable by
and attachments, the Bid bond, if any, the proposed OWNER to Contractor for completion of the Work in
Contract Documents,and all Addenda,if any. accordance with the Contract Documents and as stated in
the Construction Agreement.
9. Change Order--A document recommended by
ENGINEER, which is signed by Contractor and 15. Contract Times--The numbers of days or the
OWNER to authorize an addition, deletion or revision in dates stated in the Construction Agreement to:
the Work, or an adjustment in the Contract Price or the (i)achieve Substantial Completion, and (ii) complete the
Contract Times, issued on or after the Effective Date of Work so that it is ready for final payment as evidenced
the Construction Agreement. by ENGINEER's written recommendation of final
payment.
10. Construction Agreement--The written
instrument which is evidence of the agreement,contained 16. Contractor--An individual or entity with whom
in the Contract Documents, between OWNER and OWNER enters into a Construction Agreement.
Contractor covering the Work.
17. Correction Period--The time after Substantial
11. Construction Contract--The entire and Completion during which Contractor must correct, at no
integrated written agreement between tl�e OWNER and cost to OWNER,any Defective Work,normally one year
Contractor concerning the Work. after the date of Substantial Completion or such longer
period of time as may be prescribed by Laws or
12. Construction Cost--The cost to OWNER of Regulations or by the terms of any applicable special
those portions of the entire Project designed or specified guarantee or specific provision of the Contract
by ENGINEER. Construction Cost does not include Documents.
costs of services of ENGINEER or other design
professionals and consultants,cost of land,rights-of-way, 18. Defective--An adjective which, when modifying
or compensation for damages to properties,or OWNER's the word Work, refers to Work that is unsatisfactory,
costs for legal, accounting, insurance counseling or faulty, or deficient, in that it does not conform to the
auditing services, or interest and financing charges Contract Documents, or does not meet the requirements
incurred in connection with the Project, or the cost of of any inspection, reference standard, test, or approval
other services to be provided by otliers to OWNER referred to in the Contract Documctlts, or has been
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
damaged prior to ENGINEER's recommendation of final Solid Waste Disposal Act (42 USC Section 6903) as
payment. amended from time to time.
19. Documents--Data, reports, Drawings, 28. Laws and Regulations; Laws or Regulations--
Specifications, Record Drawings, and other deliverables, Any and all applicable laws, rules, regulations,
whether in printed or electronic media format, provided ordinances, codes, standards, and orders of any and all
or furnished in appropriate phases by ENGINEER to governmental bodies, agencies, authorities, and courts
OWNER pursuant to this Agreement. having jurisdiction.
20. Drawings--That part of the Contract Documents 29. PCB's--Polychlorinated biphenyls.
prepared or approved by ENGINEER which graphically
shows the scope,extent, and character of the Work to be 30. Petroleum--Petroleum, including crude oil or
performed by Contractor. Shop Drawings are not any fraction thereof which is liquid at standard conditions
Drawings as so defined. of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
21. Effective Date of the Construction Agreement-- petroleum, fuel oil, oil sludge, oil refuse, gasoline,
The date indicated in the Construction Agreement on kerosene,and oil mixed with other non-Hazardous Waste
which it becomes effective, but if no such date is _and crude oils.
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two 31. Radioactive Materials--Source, special nuclear,
parties to sign and deliver. or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
22. Effective Date of the Agreement--The date from time to time.
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the 32. Record Drawings--The Drawings as issued for
date on which the Agreement is signed and delivered by construction on which the ENGINEER, upon completion
the last of the two parties to sign and deliver. of the Work, has shown changes due to Addenda or
Change Orders and other information which ENGINEER
23. ENGINEER's Consultants--Individuals or considers significant based on record documents
entities having a contract with ENGINEER to furnish furnished by Contractor to ENGINEER and which were
services with respect to this Project as ENGINEER's annotated by Contractor to show changes made during
independent professional associates, consultants, construction.
subcontractors, or vendors. The term ENGINEER
includes ENGINEER"s Consultants. 33. Reimbursable Erpenses--The expenses incurred
directly by ENGINEER in connection with the
24. Field Order--A written order issued by performing or furnishing of Basic and Additional
ENGINEER which directs minor changes in the Work Services for the Project for which OWNER shall pay
but which does not involve a change in the Contract Price ENGINEER as indicated in Exhibit C.
or the Contract Times.
34. Resident Project Representative--The
25. General Conditions-That part of the Contract authorized representative of ENGINEER, if any,
Documents which sets forth terms, conditions, and assigned to assist ENGINEER at the Site during the
procedures that govern the Work to be performed or Construction Phase. The Resident Project Representative
furnished by Contractor with respect to the Project. will be ENGINEER's agent or employee and under
ENGINEER's supervision. As used herein, the term
26. llc:-ardous Environmental Condition--The Resident Project Representative includes any assistants of
presence at the Site of Asbestos, PCB's, Petroleum, Resident Project Representative agreed to by OWNER.
I-lazardous Waste, or Radioactive Materials in such 1"he duties and responsibilities of the Resident Project
quantities or circumstances that may present a substantial Representative are as set forth in Exhibit D.
danger to persons or property exposed thereto in
connection with the Work. 35. .Samples--Physical examples of materials,
equipment, or workmanship that arc representative of
27. Hazardous 11"atite--The term Hazardous Waste some portion of the Work and which establish the
Shall have the nleaning provided in Section 1004 of the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
standards by which such portion of the Work will be materials and all equipment into such construction, all as
judged. required by the Contract Documents.
36. Shop Drawings--All drawings, diagrams, 43. Work Change Directive--A written directive to
illustrations, schedules, and other data or information Contractor issued on or after the Effective Date of the
which are specifically prepared or assembled by or for Construction Agreement and signed by OWNER upon
Contractor and submitted by Contractor to ENGINEER recommendation of the ENGINEER, ordering an
to illustrate some portion of the Work. addition,deletion,or revision in the Work,or responding
to differing or unforeseen subsurface or physical
37. Site--Lands or areas indicated in the Contract conditions under which the Work is to be performed or to
Documents as being furnished by OWNER upon which emergencies. A Work Change Directive will not change
the Work is to be performed, rights-of-way and the Contract Price or the Contract Times but is evidence
easements for access thereto, and such other lands that the parties expect that the change directed or
furnished by OWNER which are designated for use of documented by a Work Change Directive will be
Contractor. incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if
38. Specifications—That part of the Contract any,on the Contract Price or Contract Times.
Documents consisting of written technical descriptions of
materials, equipment, systems, standards, and 44. Written Amendment--A written amendment of
workmanship as applied to the Work and certain the Contract Documents signed by OWNER and
administrative details applicable thereto. Contractor on or after the Effective Date of the
Construction Agreement and normally dealing with the
39. Substantial Completion--The time at which the non-engineering or non-technical rather than strictly
Work (or a specified part thereof) has progressed to the construction-related aspects of the Contract Documents.
point where, in the opinion of ENGINEER,the Work(or
a specified part thereof) is sufficiently complete, in ARTICLE 8 - EXHIBITS AND SPECIAL
accordance with the Contract Documents, so that the PROVISIONS
Work (or a specified part thereof)can be utilized for the
purposes for which it is intended. The terms
"substantially complete" and "substantially completed" 8.01 Exhibits Included
as applied to all or part of the Work refer to Substantial
Completion thereof. A. Exhibit A, "ENGINEER's Services," consisting of
eight(8)pages.
40. Supplementary Conditions--That part of the Contract
Documents which amends or supplements the General B. Exhibit B. "OWNER's Responsibilities," consisting
Conditions. of three(3) pages.
41. Total Project Costs--The sum of the Construction Cost, C. Exhibit C. "Payments to Engineer for Services and
allowances for contingencies, the total costs of services of Reimbursable Expenses,"consisting of one(1)page.
ENGINEER or other design professionals and consultants,
cost of land, rights-of-way, or compensation for damages to D. Exhibit D, "Duties, Responsibilities and Limitations
properties, or OWNER's costs for legal, accounting, of Authority of Resident Project Representative," is not used.
insurance counseling or auditing services, or interest and
financing charges incurred in connection with the Project, or E. Exhibit E, "Notice of Acceptability of Work,"
the cost of other services to be provided by others to OWNER consisting of two(2) pages.
pursuant to Exhibit B of this Agreement.
F. Exhibit F."Construction Cost Limit," is not used.
42. Work--The entire completed construction or the various
separately identifiable parts thereof required to be provided G. Exhibit G,"Insurance,"consisting of two(2) pages.
udder the Contract Documents with respect to this Project.
Work includes and is the result of performing or furnishing 1-1. Exhibit 1-11,"Dispute Resolution," is not used.
labor, services, and documentation necessary to produce such
coristrtrction and furnishing, installing, and incorporating all 1. Exllibit 1,"Allocation of Risks," is not used.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I I of 12
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: ENGINEER:
CITY OF BAYTOWN
B . •
Y /( By.
Title: CITY MANAGER0. Title: 1 t..Q,
Date Signed: Date Si •gn 1
ed. � Iq
Address for giving notices: Address for giving notices:
P.O. BOX 424 3200 Wilcrest, Suite 200
Baytown,Texas 77422-0424 Houston, Texas 7 7 04 2-6 017
Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A):
Howard W. Wellspring III, P.E. Trent Slovak
Title: City Engineer Title: S r. Engineer
Phone Number: (281)420-6545 Phone Number: 713-7 81-8800
Facsimile Number:_ (281)420-6586 Facsimile Number: 713-781-8010
E-Mail Address: li%vwellsprin;cr,baytown.or,0. E-Mail Address: tislovak@pbsj .com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 8 pages, referred to in and
part of the Agreement between OVXNER and ENGINEER
for Prof ssional Services dated rA
Initial:
OWNER Z2LA Z
ENGINEER
ENGINEER's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART 1 --BASIC SERVICES(Modified)
.A 1.01 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. (Modified) 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. Obtain permits from all
governmental authorities having jurisdiction to approve all phases of the Project designed or specified by
ENGINEER.
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)
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.
A 1.02 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 A 1.01.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 A l.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:
Page 2 of 8 Pages
(Exhibit A - ENGINEER's Serviccs)
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.
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:
S. 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.
6. (Added) Assist in connection with Bid protests, rebidding, or renegotiating contracts for construction,
materials,equipment,or services.
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).
A 1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER,ENGINEER shall:
I. 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 identified in paragraph B2.01.0.
3. Pre-Construction Conference. Participate in a Pre-Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate,establish baselines and benchmarks for locating the Work
which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. 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,
Page 3 of 8 Pages
(Exhibit A - ENGINEER's Services)
if any. Based on information obtained during such visits and such observations,ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep
OWNER informed of the progress of the Work.
b. The purpose of ENGINEER's visits to,and representation by the Resident Project Representative,
if any, at the Site,will be to enable ENGINEER to better carry out the duties and responsibilities assigned to
and undertaken by ENGINEER during the Construction Phase, and, in addition, by the exercise of
ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater
degree of confidence that the completed Work will 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.to
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 oil the results of such tests.
12. (Modified)Disagreements between 0JVNER 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
Page 4 of 8 Pages
(Exhibit A - ENGINEER's Services)
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:
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 on prior to or upon
P
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
A 1.05.A.6.a are expressly subject to the limitations set forth in paragraph A 1.05.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 A 1.05.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. lidditional Taskv. Perform or provide the following additional Construction Phase tasks or deliverables:
Page 5 of 8 Pages
(Exhibit A - ENGINEER's Services)
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.
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 A 1.03.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.
A 1.05 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 Ad-ante
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.
Page 6 of 8 Pages
(Exhibit A - ENGINEER's Services)
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,
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 1.01.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. (Not Used).
15. Providing construction surveys and staking to enable Contractor to perform its work other than as
required under paragraph A 1.05.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 Environmcntal Condition in compliance with current
Laws and Regulations.
Page 7 of 8 Pages
(Exhibit A - ENGINEER's Services)
18. Preparing and furnishing to OWNER Record Drawings showing appropriate record information based on
Project annotated record documents received from Contractor.
19. Preparation of operation and maintenance manuals.
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.
23. (Added) Property, boundary, easement, right-of-way, and other special surveys or data including
establishing relevant reference points.
24. (Added) 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.
25. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant
environmental or cultural studies as to the Project,the Site,and adjacent areas.
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 clairns submitted by Contractor or others in
connection with the Work.
Page 8 of 8 Pages
(Exhibit A - ENGINEER's Services)
This is EXHIBIT B, consisting of 3 pages, referred to in and
part of the Agreement between OW ER and ENGINEER
for Pro essional Services dated /
Initial:
OWNER
ENGINEER
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard
forms,conditions,and related documents for ENGINEER to include in the Bidding Documents,when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs,or investigation at or adjacent to the Site.
C. Following 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:
l. Property descriptions.
2. Zoning,deed,and other land use restrictions.
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement,as the OWNER,determines is necessary.
F. 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.
Page 1 of 3 Pages
(Exiiibit B - OWNER's Responsibilities)
H. (Deleted).
I. (Deleted).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review,value engineering,and 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. (Deleted).
P. (Deleted).
Q. (Deleted).
R. (Deleted).
Page 2 of 3 Pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of 1 page, referred to in and
part of the Agreement between U R and ENGINEER
for Prof sion l Services dated
Initial:
OWNER
ENGINEER
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and Sum to account for labor, overhead, profit, and
supplemented to include the following agreement of Reimbursable Expenses.
the parties:
4. The portion of the Lump Sum amount
ARTICLE 4-- PAYMENTS TO THE ENGINEER billed for ENGINEER's services will be based
upon ENGINEER's estimate of the proportion
C4.01 For Basic Services Having A Determined of the total services actually completed during
Scope--Lump Sum Method of Payment the billing period to the Lump Sum.
A. OWNER shall pay ENGINEER for Basic 5. The Lump Sum is conditioned on
Services set forth in Exhibit A, except for services Contract Times to complete the Work not
of ENGINEER's Resident Project Representative exceeding 12 months. Should the Contract
and Post-Construction Phase services, if any, as Times to complete the Work be extended
follows: beyond this period, the total compensation to
ENGINEER shall be appropriately adjusted.
1. A Lump Sum amount of $29,100.00
based on the following assumed distribution of 6. If more prime contracts are awarded
compensation: for Work designed or specified by ENGINEER
for this Project than identified in Exhibit A, the
a. Lead Based Coating and ENGINEER shall be compensated an additional
Asbestos Survey $ 19500.00 amount equal to $0 ter all Basic Services for
b. Laboratory Analysis $300.00 each prime contract added.
c. Abatement Procedure Report $3 9500.00
d. Preparation of Design and
Bidding Documents $149500.00 C4.02 For Additional Services
e. Construction Phase Services $69800.00
f. Printing and Duplication of A. OWNER shall pay ENGINEER for
Documents $1,500.00 Additional Services pursuant to paragraph
g. Miscellaneous Expenses $19000.00 A2.01 of Exhibit A.
B. Sample and analyze material
2. ENGINEER may alter the distribution (two samples) for TPH content $500.00.
of compensation between individual phases
noted herein to be consistent with services
actually rendered, but shall not exceed the total
Lump Sum amount unless approved in writing
by the OWNER.
3. The Lump Sum includes compensation
for ENGINEER's services and services of
ENGINEER's Consultants, if any. Appropriate
amounts have been incorporated" in the Lump
Page 1 of I page
Sheet C-1 (Exhibit C - Basic Services With Determined Scope -- Lump Sum Method)
This is EXHIBIT E, consisting of 2 pages, referred to in
and part of the Agreement between OWNER and
EN INFER for Professio al Services dated
Initial:
OWNER '
ENGINEER Y
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER: City of Baytown -
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To: OWNER
And To: CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
By:
Title:
Dated: ,
Page 1 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession
practicing under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during 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)
This is EXHIBIT G, consisting of 2 pages, referred to in
and part of the Agreement between OWNER and
ENRYMECARN 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 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain
and keep in force and effect insurance against claims for injuries to or death of persons or damages to
property 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."
Page 1 of 2 Pages
(Exhibit G - Insurance)
Errors & Omissions (E&O)
Limit: $250.P000
a. For all engineers, 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.
Workers' Compensation: Statutory Limits
Employer's Liability: $500,000
a. Waiver of Subrogation Required.
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
g
afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty 30
days prior written notice has been given to the OWNER via certified mail, return receipt requested.
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
011 1 p c es.
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 (claims g) of anlistin and/or all
y
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.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EIIiBIT K, consisting of 2 pages, referred to in and
pan of the Agreement between OWNER a GINEEAt
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER AGREES TO AND SHALL INDEM[NIFY 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 INDEM[NITY SHALL APPLY (1) TO THE FULLEST
EXTENT ALLOWED BY LAW AND (In 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 (11) 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 INDEbINITY 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 INNRY 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 INNRY, DEATH, OR
Page I of 2 Pages
(Exhibit K- indemnification)
PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER
THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE
OF OWNER., IN TIC EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON
OF ANY OF TIC ABOVE, TIC ENGINEER FURTHER AGREES
AND COVENANTS TO DEFEND TIC ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY AND T HE 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)