Ordinance No. 9,12220010308 -4
ORDINANCE NO. 9122
® AN ORDINANCE AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE
CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO AN
AGREEMENT WITH BUSCH, HUTCHISON AND ASSOCIATES, INC., TO PREPARE
PLANS AND SPECIFICATIONS FOR THE 2001 MUNICIPAL STREET
REHABILITATION PROGRAM; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN, THE SUM OF ONE HUNDRED EIGHT THOUSAND TWO HUNDRED
TWENTY -ONE AND NO /100 DOLLARS ($108,221.00); MAKING OTHER
PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the
City Manager and the City Clerk of the City of Baytown to execute and attest to an agreement with Busch,
Hutchison and Associates, Inc., to prepare plans and specifications for the 2001 Municipal Street
Rehabilitation Program. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part
hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Busch, Hutchison
and Associates, Inc., to prepare plans and specifications for the 2001 Municipal Street Rehabilitation Program
of the sum of ONE HUNDRED EIGHT THOUSAND TWO HUNDRED TWENTY -ONE AND NO /100
DOLLARS ($108,221.00), pursuant to the Agreement.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated §
252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of 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_,Iais illQ78-'' day of March, 2001.
PETE C. ALFARO, M&qor
ATTEST:
G Y W� 'iVIITIxr' amity Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., i Attorney
dAMyDocuments \Council \00 -01 \March\AWardContractForo l Municipal StreetRehabProgram
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of
Between
The City of Baytown ( "OWNER ")
and
Busch, Hutchison & Associates, Inc.
OWNER intends to Construct the 2001 Municipal Street Rehabilitation Program
Basic service will include a traffic control plan and a storm water pollution prevention plan.
( "Effective Date ").
( "ENGLNEER ")
OWNER and ENGL 1EER in consideration of their mutual covenants as set forth herein agree as follows:
EMIT A
Standard Form of Agreement
Between Owner and Engineer for Professional Services
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( "Project ")
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TABLE OF CONTENTS Page
ARTICLE1 - SERVICES OF ENGINEER ......................................................................................... ............................... 3
1.01 Scope .................................................................................................................................. ............................... 3
ARTICLE2 - OWNER'S RESPONSIBILITIES .................................................................................. ............................... 3
2.01 General ................................................................................................................................ ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ................................................................................................................................ ............................... 3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE4 - PAYMENTS TO ENGINEER ....................................................................................... ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................. ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost ........................................................................... .......4....................... 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 ..................................................................... ............................... 5
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 - DEFI 1TTIONS ............................................................................................................... ............................... 8
7.01 Defined Terms .................................................................................................................... ..............................8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... 11
8.01 Exhibits Included .............................................................................................................. ............................... 11
8.02 Total Agreement ............................................................................................................... ............................... I 1
Standard Form of Agreement
Between Owner and Engineer for Professional Services
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ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGNEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. If authorized by OWNER, ENGINEER shall
furnish Resident Project Representative(s) with duties,
responsibilities and limitations of authority as set forth in
Exhibit D.
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set
forth herein and in Exhibit B.
.ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. ENGNEER's services and compensation
under this Agreement have been agreed to in anticipation of
the orderly and continuous progress of the Project through
completiop. Unless specific periods of time or specific dates
for providing services are specified in this Agreement,
ENGNEER's obligation to render services hereunder will be
for a period which may reasonably be required for the
completion of said services.
B. If in this Agreement specific periods of
time for rendering services are set forth or specific dates by
which services are to be completed are provided, and if such
periods of time or dates are changed through no fault of
ENGINEER, the rates and amounts of compensation
provided for herein shall be subject to equitable adjustment.
If OWNER has requested changes in the scope, extent, or
character of the Project, the time of performance of
ENGNEER's services shall be adjusted equitably.
C. For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Modified) If OWNER fails within a
reasonable period of time to give written authorization to
proceed with any phase of services after completion of the
immediately preceding phase, or if ENGNEER's services are
delayed through no fault of ENGNEER. ENGNEER may,
after giving seven days written notice to OWNER, suspend
services under this Agreement.
B. If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, or if
ENGINEER's services are extended by Contractor's actions
or inactions for more than 90 days through no fault of
ENGLN-EER, ENGINEER shall be entitled to equitable
adjustment of rates and amounts of compensation provided
for elsewhere in this Agreement to reflect, reasonable costs
incurred by ENGINEER in connection with, among other
things, such delay or suspension and reactivation and the fact
that the time for performance under this Agreement has been
revised.
.ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGPt LEER
A. For Basic Services. OWNER shall pay
ENGR,;EER for Basic Services performed or furnished under
Exhibit A, Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall
pay ENGENEER for Additional Services performed or
furnished under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.0 LA and
4.01.13, OWNER shall pay ENGNEER for Reimbursable
Expenses incurred by ENGNEER and ENGNEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGNEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGNEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be
prepared in accordance with ENGNEER's standard
invoicing practices and will be submitted to OWNER by
ENGNEER, unless otherwise agreed. The amount billed in
each invoice will be calculated as set forth in Exhibit C.
B. (Modified) Payment of Invoices. Invoices are
due and payable within 30 days after the receipt thereof. If
OWNER fails to make any payment due ENGINEER for
services and expenses within 30 days after receipt of
ENGNEER's invoice therefor, the amounts due ENGINEER
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will be increased at the rare of 1.0% per month (or the
maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days written
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. However. it is
expressly understood and agreed that ENGINEER will not
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and withheld in
accordance with 3.02.0 and that ENGINEER will not
suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
payments will be credited first to principal and then to
interest.
C. Disputed Invoices. In the event of a
disputed or contested invoice, only that portion so contested
may be withheld from payment, and the undisputed portion
will be paid.
D. Payments Upon Termination.
1. In the event of any termination under
paragraph 6.06, ENGINEER will be entitled to invoice
OWNER and will be paid in accordance with Exhibit C
for all services performed or famished and all
Reimbursable Expenses incurred through the effective
date of termination.
2. In the event of termination by OWNER for
convenience or by ENGINEER for cause, ENGINEER,
in addition to invoicing for those items identified in
subparagraph 4.02.D.1, shall be entitled to invoice
OWNER and shall be paid a reasonable amount for
services and expenses directly attributable to termination,
both before and after the effective date of termination,
such as reassignment of personnel, costs of terminating
contracts with ENGINEER's Consultants, and other
related close -out costs, using methods and rates for
Additional Services as set forth in Exhibit C.
E. (Modified) Records of ENGINEER's Costs
Records of ENGRI EER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. ' Legislative Actions. In the event of
legislative actions after the Effective Date of the Agreement
by any level of government that impose taxes, fees, or costs
on ENGINEER's services or other costs in connection with
this Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGE TEER's opinions of probable
Construction Cost provided for herein are to be made on the
basis of ENGLNEER's experience and qualifications and
represent ENGL `EER's best judgment as an experienced and
qualified professional generally familiar with the industry.
However, since ENGNEER has no control over the cost of
labor, materials, equipment, or services funushed by others,
or over the Contractor's methods of determining prices, or
over competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids, or, actual
Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER. If OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. If a Construction Cost limit is established
between OWNER and ENGINEER, such Construction Cost
limit and a statement of ENGINEER's rights and
responsibilities with respect thereto will be specifically set
forth in Exhibit F, "Construction Cost Limit," to this
Agreement.
5.03 Opinions of Total Project Costs
A. ENGL EER assumes no responsibility for
the accuracy of opinions of Total Project Costs.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. The standard of care for all professional
engineering and related services performed or furnished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGNEER's profession
practicing under similar circumstances at the same time and
in the same locality. ENGINEER makes no warranties,
express or implied, under this Agreement or otherwise, in
connection with ENGNEER's services.
B. ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. ENGINEER shall correct
such deficiencies without additional compensation except to
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the extent such action is directly attributable to deficiencies in
OWNER- furnished information.
C. ENGINEER shall perform or famish
professional engineering and related services in all phases of
the Project to which this Agreement applies. ENGINEER
shall serve as OWNERS prime professional for the Project.
ENGINEER may employ such ENGNEER's Consultants as
ENGINEER deems necessary to assist in the performance or
furnishing of the services. ENGINEER shall not be required
to employ any ENGNEER's Consultant unacceptable to
ENGINEER.
D. ENGINEER and OWNER shall comply
with applicable Laws or Regulations and OWNER- mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGN -EER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for,
and ENGINEER may rely upon, the accuracy and
completeness of all requirements, programs, instructions,
reports, data, and other information furnished by OWNER to
ENGINEER pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER. ENGINEER
may use such requirements, reports, data, and information in
performing or famishing services under this Agreement.
F. OWNER shall make decisions and carry
out its other responsibilities in a timely manner and shall bear
all costs incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the
Construction Phase, OWNER shall notify ENGINEER of any
variations from the language indicated in Exhibit E, "Notice
of Acceptability of Work," or of any other notice or
certification that ENGINEER will be requested to provide to
OWNER or third parties m connection with the Project.
OWNER and ENGINEER shall reach agreement on the terms
of any such requested notice or certification, and OWNER
shall authorize such Additional Services as are necessary to
enable ENGINEER to provide the notices or certifications
requested.
H. (Modified) ENGINEER shall not be required to
sign any documents, no matter by whom requested, that
would result in ENGNEER's having to certify, guarantee or
warrant the existence of conditions whose existence
ENGINEER cannot ascertain; provided, that ENGINEER has
exercised due diligence and was not otherwise required to
certify, guarantee or warrant the existence of such conditions.
1. During the Construction Phase,
ENGNEER shall not supervise, direct, or have control over
Contractor's work, nor shall ENGINEER have authority over
or responsibility for the means, methods, techniques,
sequences, or procedures of construction selected by
Contractor, for safety precautions and programs incident to
the Contractor's work in progress, nor for any failure of
Contractor to comply with Laws and Regulations applicable
to Contractor's furnishing and performing the Work.
1. (Modified) ENGINEER neither guarantees
the performance of any Contractor nor assumes responsibility
for any Contractor's failure to furnish and perform the Work
in accordance with the Contract Documents. However,
nothing contained in this paragraph shall be construed so as to
absolve ENGINEER from liability for any such failure about
which ENGINEER knew or should have known existed in the
exercise of Ei`iGINEER's services under this Agreement.
K. ENGINEER shall not be responsible for the acts
or omissions of any Contractor(s), subcontractor or supplier,
or of any of the Contractor's agents or employees or any other
persons (except ENGE EER's own employees) at the Site or
otherwise furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the "Standard General Conditions of the Construction
Contract" as prepared by the Engineers Joint Contract
Documents Committee (Document No. 1910 -8, 1996 Edition)
and as modified by OWNER.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of
this Agreement, ENGN EER and OWNER shall designate
specific individuals to act as ENGNEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
pay.
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction
Phase services with either OW ER's representatives or a
third parry, ENGNEER's Basic Services under this
Agreement will be considered to be completed upon
completion of the Final Design Phase or Bidding, or
Negotiating Phase as outlined in Exhibit A:
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ENGNEER's Basic Services under this Agreement will be
considered to be completed upon completion of the Final
Design Phase or Bidding or Negotiating Phase as outlined in
Exhibit A.
B. It is understood and agreed that if ENGINEER's
Basic Services under this Agreement do not include Project
observation, or review of the Contractor's performance, or any
other Construction Phase services, and that such services will
be provided by OWNER, then OWNER assumes all
responsibility for interpretation of the Contract Documents
and for construction observation or review and waives any
claims against the ENGNEER that may be in any way
connected thereto.
6.04 Use of Documents
A. (Modified) upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGNEER's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
ENGNEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGNEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees tit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGNEER and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.2 shall be for the benefit of the ENGINEER, its
officers, and employees, as well as their successors and
assigns.
B. (Modified) Copies of OWNER- furnished data that
may be relied upon by ENGNEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGNEER. Files in
electronic media fomiat of text, data, graphics, or of other
types that are furnished by ENGNEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic tiles will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving,
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving pam
shall be deemed to have accepted the data thus transferred.
Any errors detected within the 60 -day acceptance period will
be corrected by the party delivering the electronic files.
ENGNEER shall not be responsible to maintain documents
stored in electronic media format after acceptance by
OWNER.
E. When transferring documents in electronic media
format, ENGNEER makes no, representations as to long term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from those used by
ENGN -EER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the reuse
of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGNEER to further compensation at rates to be agreed
upon by OWNER and ENGNEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that ENGINEER,
at OWNER'S sole expense, provide additional insurance
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® 6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. By either party upon 30 days written notice
in the event of substantial failure by the other party
to perform in accordance with the terms hereof.
through no fault of the terminating parry; or
b. By ENGINEER upon seven days written
notice if ENG 1NEER is being requested by
OWNER to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the parry receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof, provided, however, that if
and to the extent such substantial failure cannot be
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
2. For convenience by OWNER effective
upon the receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the
law of the state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and ENGINEER each is hereby
bound and the partners, successors, executors, administrators
and legal representatives of OWNER and ENGINEER (and
to the extent permitted by paragraph 6.083 the assigns of
OWNER and ENGINEER) are hereby bound to the other
party to this Agreement and to the partners, successors,
executors, administrators and legal representatives (and said
assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
B. Neither OWNER nor ENGINEER may
assign, sublet, or transfer any rights under or interest
(including, but without limitation, moneys that are due or may
become due) in this Agreement without the written consent of
the other, except to the extent that any assignment, subletting,
or transfer is mandated or restricted by law, unless
specifically stated to the contrary m any written consent to an
assignment, no assignment will release or discharge the
assignor from any duty or responsibility under this
Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be
construed to create, impose, or give rise to any duty
owed by OWNER or ENGINEER to any Contractor,
Contractor's subcontractor, supplier, other individual or
entiry, or to any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the
best of its knowledge a Hazardous Environmental Condition
does not exist.
B. (Modified) OWNER has disclosed to the best
of its knowledge and belief to ENGINEER the existence of
all Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
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Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER
is performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," "operator," "generator," or "transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Site in connection with ENGINEER's activities under this
Agreement.
. F. If ENGNEER's services under this
Agreement cannot be performed because of a Hazardous
Environmental Condition, the existence of the condition shall
justify ENGLNi -EER's terminating this Agreement for cause on
30 days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. Any notice required under this Agreement
will be in writing, addressed to the appropriate party at its
address on the signature page and given personally, or by
registered or certified mail postage prepaid, or by a
commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. All express representations,
indemnifications, or limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement
held to be void or unenforceable under any Laws or
Regulations shall be deemed stricken, and all remaining
provisions shall continue to be valid and binding upon
OWNER and ENGINEER, who agree that the Agreement
shall be reformed to replace such stricken provision or part
thereof with a valid and enforceable provision that comes as
close as possible to expressing the intention of the stricken
provision.
6.15 Waiver
A. Non- enforcement of any provision by
either party shall not constitute a waiver of that provision, nor
shall it affect the enforceability of that provision or of the
remainder of this Agreement.
6.16 Headings
A. The headings used in this Agreement are
for general reference only and do not have special
significance.
ARTICLE 7 - DEFLNITIONS
7.01 Defined Terms
A. Wherever used in this Agreement
(including the Exhibits hereto) and printed with initial or all
capital letters, the terms listed below have the meanings
indicated, which are applicable to both the singular and
plural thereof:
1. Addenda -- Written or graphic instruments
issued prior to the opening of Bids which clarify, correct,
or change the Bidding Documents.
2. Additional Services —The services to be
performed for or fiurnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement —This "Standard Form of
Agreement between OWNER and ENGINEER for
Professional Services," including those Exhibits listed in
Article 8 hereof.
4. Application for Payment —The form
acceptable to ENGINEER which is to be used by
Contractor in requesting progress or final payments for
the completion of its Work and which is to be
accompanied by such supporting documentation as is
required by the Contract Documents.
5. Asbestos —Any material that contains more
than one percent asbestos and is friable or is releasing
asbestos fibers into the air above current action levels
established by the United States Occupational Safety and
Health Administration.
6. Basic Services - -The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 1, of this Agreement.
7. Bid - -The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. Bidding Documents- -The advertisement or
invitation to Bid, instructions to bidders, the Bid form
Standard Form.of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
9. Change Order - -A document recommended
by ENGINEER, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
the Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date of
the Construction Agreement.
10. Construction Agreement - -The written
instrument which is evidence of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract - -The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. Construction Cost - -The cost to OWNER of
those portions of the entire Project designed or specified
by ENGINEER. Construction Cost does not include
costs of services of ENGINEER or other design
professionals and consultants, cost of land, rights -of -way,
or compensation for damages to properties, or
OWNER's costs for legal, accounting, insurance
counseling or auditing services, or interest and financing
charges incurred in connection with the Project, or the
cost of other services to be provided by others to
OWNER pursuant to Exhibit B of this Agreement.
Construction Cost is one of the items comprising Total
Project Costs.
13. Contract Documents — Documents that
establish the rights and obligations of the parties engaged
in construction and include the Construction Agreement
between OWNER and Contractor, Addenda (which
pertain to the Contract Documents), Contractor's Bid
(including documentation accompanying the Bid and any
post -Bid documentation submitted prior to the notice of
award) when attached as an exhibit to the Construction
Agreement, the notice to proceed, the bonds, appropriate
certifications, the General Conditions, the Supplementary
Conditions, the Specifications and the Drawings as the
same are more specifically identified in the Construction
Agreement, together with all Written Amendments,
Change Orders, Work Change Directives, Field Orders,
and ENGNEER's written interpretations and
clarifications issued on or after the Effective Date of the
Construction Agreement. Approved Shop Drawings and
the reports and drawings of subsurface and physical
conditions are not Contract Documents.
14. Contract Price- -The moneys payable by
OWNER to Contractor for completion of the Work in
® accordance with the Contract Documents and as stated in
the Construction Agreement.
15. Contract Times - -The numbers of days or
the dates stated in the Construction agreement to:
(i) achieve Substantial Completion, and (ii) complete the
Work so that it is ready for final payment as evidenced
by ENGINEER's written recommendation of final
payment.
16. Contractor - -An individual or entity with
whom OWNER enters into a Construction Agreement.
t7. Correction Period - -The time after
Substantial Completion during which Contractor must
correct, at no cost to OWNER, any Defective Work,
normally one year after the date of Substantial
Completion or such longer period of time as may be
prescribed by Laws or Regulations or by the terms of any
applicable special guarantee or specific provision of the
Contract Documents.
18. Defective - -An adjective which, when
modifying the word Work, refers to Work that is
unsatisfactory, faulty, or deficient, in that it does not
conform to the Contract Documents, or does not meet the
requirements of any inspection, reference standard, test,
or approval referred to in the Contract Documents, or has
been damaged prior to ENGNEER's recommendation of
final payment.
19. Documents - -Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or furnished in appropriate phases by ENGINEER to
OWNER pursuant to this Agreement.
20. Drawings - -That part of the Contract
Documents prepared or approved by ENGINEER which
graphically shows the scope, extent, and character of the
Work to be performed by Contractor. Shop Drawings
are not Drawings as so defined.
21. Effective Date of the Construction
Agreement - -The date indicated in the Construction
Agreement on which it becomes effective, but if no such
date is indicated, it means the date on which the
Construction Agreement is signed and delivered by the
last of the two parties to sign and deliver.
22. Effective Date of the Agreement - -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants -- Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGI`i IEER's
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
E
C7
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGNEER's Consultants.
24. Field Order - -A written order issued by
ENGINEER which directs minor changes in the Work
but which does not involve a change in the Contract
Price or the Contract Times.
25. General Conditions -That part of the
Contract Documents which sets forth terms, conditions,
and procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
26. Hazardous Environmental Condition- -The
presence at the Site of Asbestos, PCB's, Petroleum,
Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
27. Hazardous Waste - -The term Hazardous
Waste shall have the meaning provided in Section 1004
of the Solid Waste Disposal Act (42 USC Section 6903)
as amended from time to time.
28. Laws and Regulations; Laws or
Regulations- -Any and all applicable laws, rules,
regulations, ordinances, codes, standards, and orders of
any and all governmental bodies, agencies, authorities,
and courts having jurisdiction.
29. PCB's -- Polychlorinated biphenyls.
30. Petroleum — Petroleum, including crude oil
or any fraction thereof which is liquid at standard
conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute),
such as oil, petroleum, fuel oil, oil sludge, oil refuse,
gasoline, kerosene, and oil mixed with other non-
Hazardous Waste and crude oils.
31. Radioactive Materials-- Source, special
nuclear, or byproduct material as defined by the Atomic
Energy Act of 1954 (42 USC Section 2011 et seq.) as
amended from time to time.
32. Record Drawings- -The Drawings as issued
for construction on which the ENGINEER, upon.
completion of the Work, has shown changes due to
Addenda or Change Orders and other information which
ENGINEER considers significant based on record
documents furnished by Contractor to ENGNEER and
which were annotated by Contractor to show changes
made during construction.
33. Reimbursable Expenses- -The expenses
incurred directly by ENGINTER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OW FER shall pay
ENGINEER as indicated in Exhibit C.
34. Resident Project Representative- -The
authorized representative of ENGINEER, if any,
assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project
Representative will be ENGNEER's agent or employee
and under ENGNEER's supervision. As used herein,
the term Resident Project Representative includes any
assistants of Resident Project Representative agreed to by
OINNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
35. Samples -- Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
36. Shop Drawings —All drawings, diagrams,
illustrations, schedules, and other data or information
which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to ENGIN -EER
to illustrate some portion of the Work.
37. Site —Lands or areas indicated in the
Contract Documents as being furnished by OWNER
upon which the Work is to be performed, rights -of -way
and easements for access thereto, and such other lands
famished by OWNER which are designated for use of
Contractor.
38. Specifications- -That part of the Contract
Documents consisting of written technical descriptions of
materials, equipment, systems, standards, and
workmanship as applied to the Work and certain
administrative details applicable thereto.
39. Substantial Completion —The time at which
the Work (or a specified part thereof) has progressed to
the point where, in the opinion of ENGINEER, the Work
(or a specified part thereof) is sufficiently complete, in
accordance with the Contract Documents, so that the
Work (or a specified part thereof) can be utilized for the
purposes for which it is intended. The terms
"substantially complete" and "substantially completed"
as applied to all or part of the Work refer to Substantial
Completion thereof.
40. Supplementary Conditions- -That part of the
Contract Documents which amends or supplements the
General Conditions.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
41. Total Project Costs - -The sum of the Construction
Cost, allowances for contingencies, the total costs of services
E. Exhibit E, "Notice of Acceptability of
of ENGINEER or other design professionals and consultants,
Work," consisting of two (2) pages.
cost of land, rights -of -way, or compensation for damages to
properties, or OWNER's costs for legal, accounting,
F. Exhibit F, "Construction Cost Limit," is
insurance counseling or auditing services, or interest and
not used.
financing charges incurred in connection with the Project, or
the cost of other services to be provided by others to OWNER
G. Exhibit G, "Insurance," consisting of two
pursuant to Exhibit B of this Agreement.
(2) pages.
42. Work - -The entire completed construction or the
H. Exhibit H, "Dispute Resolution," is not
various separately identifiable parts thereof required to be
used.
provided under the Contract Documents with respect to this
Project: Work includes and is the result of performing or
I. Exhibit I, "Allocation of Risks," is not
furnishing labor, services, and documentation necessary to
used.
produce such construction and furnishing, installing, and
incorporating all materials and all equipment into such
J. Exhibit J, "Special Provisions" is not used.
construction, all as required by the Contract Documents.
K. (Added) Exhibit K, "Indemnification" consisting
43. Work Change Directive - -A written
of two (2) pages.
directive to Contractor issued on or after the Effective
Date of the Construction Agreement and signed by
8.02 Total Agreement
OWNER upon recommendation of the ENGINEER,
ordering an addition, deletion, or revision in the Work, or
A. This Agreement (consisting of pages 1 to
responding to differing or unforeseen subsurface or
12 inclusive, together with the Exhibits identified above)
physical conditions under which the Work is to be
constitutes the entire agreement between OWNER and
performed or to emergencies. A Work Change Directive
ENG tINEER and supersedes all prior written or oral
will not change the Contract Price or the Contract Times
understandings. This Agreement may only be amended,
but is evidence that the parties expect that the change
supplemented, modified, or canceled by a duly executed
directed or documented by a Work Change Directive will
written instrument. This Agreement along with the exhibits
be incorporated in a subsequently issued Change Order
shall be read and construed as the same Agreement.
following negotiations by the parties as to its effect, if
any, on the Contract Price or Contract Times.
44. Written Amendment —A written amendment
of the Contract Documents signed by OWNER and
Contractor on or after the Effective Date of the
Construction Agreement and normally dealing with the
non - engineering or non - technical rather than strictly
construction- related aspects of the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINi -EER's Services,"
consisting of eight (8) pages.
B. Exhibit B, "OWNER's Responsibilities,"
consisting of two (2) pages.
C. Exhibit C, "Payments to Engineer for
Services and Reimbursable Expenses," consisting of') pages.
D. (Not Used)
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 12
E,
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
Monte Mercer
By:
Title: CITY MANAGER
Date Signed: 3/�), l/1 /
Address for giving notices:
P.O. BOX 424
Baytown, Texas 77422 -0424
Designated Representative (paragraph 6.02.A):
Carl J. Contella, Jr., P.E.
Title:Assistant City Engineer
Phone Number: (281) 420 -7155
Facsimile Number: (281) 420 -6586
E -Mail Address: qjcontella@baytown.org
ENGINEER:
au J S C"i �4(.) ( C41 5a (-j 4 4 SSt3C .
By: o'er P, L�,-'
Title _( S_ (. 0 -T
Signed 03 O 8.O f
Address for giving notices:
X20 C)6_�c kve—,
i A 7 7 52.0
Designated Representative (paragraph 6.02.A):
Title : &c_Z
Phone Number:: Z- 9 l q 21-- g Z i 3
Facsimile Number: Z?__-) 1 2Q ~ 2-717
E -Mail Address: t C_ r - h 211 A C- • Cv �
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EX=IT A, consisting of 8 pages, referred to
in and part of the Agreement between OWNER and
ENGINEER for Professional Services dated
') !
Initial: OWNER Zle
ENGNEE —
FNGTNEER'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)
A1.01 Preliminary Design Phase
A. ENGINEER shall:
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. 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.
(Deleted).
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 finnished
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.
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.
Page 1 of 8 Pages
(Exhibit A - ENGINEER's Services)
A1.02 Final Design Phase
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of
probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER- directed
modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written
authorization from OWNER, ENGINEER shall:
1. On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating
the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be
prepared, where appropriate, in general conformance with the 16- division format of the Construction
Specifications Institute.
2. Provide technical criteria, written descriptions, and design data for OWNER'S use in filing
applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any
adjustments to Total Project Costs known to ENGINEER, itemized as provided in paragraph A1.01.A.5.
Provide extra work unit price bid items to cover unanticipated storm sewer repairs.
5. Prepare and finnish 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 ENGIlVEER'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. ENG iNEER's services under the Final Design Phase will be considered complete on the date when
the submittals required by paragraph Al. 03.A.6 have been delivered to OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed,
ENGINEER shall:
1. (Modified) Assist OWNER in advertising for and obtaining bids, reviewing substitutions and
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
0 deposits or charges for the Bidding Documents.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
Page 2 of 8 Pages
(Exhibit A - ENGINEER's Services)
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. Not Used.
5. Attend the Bid opening, prepare Bid tabulation sheets, and assist OWNER in evaluating Bids or
proposals and in assembling and awarding contracts for the Work.
6. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating 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).
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization
from OWNER, ENGINEER shall:
1. General Administration of Construction Contract. Consult with OWNER and act as
OWNER's representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except
as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued
through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the
extent provided in this Agreement and said General Conditions except as otherwise provided in writing.
2. Selecting Independent Testing Laboratory. Assist OWNER in the selection of an
independent testing laboratory to perform the services 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 ENGMER's exercise of professional judgment as assisted by the Resident Project
Representative, if any. Based on information obtained during such visits and such observations, ENGINEER
will determine if Contractor's work is proceeding in accordance with the Contract Documents, and
ENGINEER shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
® Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by
the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for
OWNER a greater degree of confidence that the completed Work will conform to the Contract Documents
Page 3 of 8 Pages
(Exhibit A - ENGINEER's Services)
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, ENGL 1EER neither guarantees
the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and
perform its work in accordance with the Contract Documents.
6. (Modified) Defective Work. Recommend to OWN -ER that Contractor's work be
disapproved and rejected while it is in progress if, on the basis of such observations, ENGE iEER believes that
such work will not produce a completed Project that conforms to the Contract Documents or that it will prejudice
the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract
Documents.
7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and
interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract
Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the
Contract Documents, not involving change in contract time or cost of project.
S. 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 m 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 ENGIIi iEER.
10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or-
equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.02.A.2 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as
deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required
by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the
purpose of determining that the results certified indicate compliance with the Contract Documents and will not
constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply
with the requirements of the Contract Documents. ENG 1NEER shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written
decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress of
Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or
Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced and
qualified design professional and on review of Applications for Payment and accompanying supporting
documentation:
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,
Page 4 of 8 Pages
(Exhibit A - ENGINEER's Services)
Contractor's work has progressed to the point indicated, the quality of such work is generally in accordance
with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any
other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled
to such payment appear to have been fulfilled in so far as it is ENGNEER's responsibility to observe
Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include
final determinations of quantities and classifications of Contractor's work (subject to any subsequent
adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph
A1.05.A.6.a are expressly subject to the limitations set forth in paragraph A1.05.A.6.b and other express or
general limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGNEER 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 famished 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 fizrnishing and performing the Work. It will also not impose responsibility on ENGINEER to
make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account
of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment
has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there
may not be other matters at issue between OWNER and Contractor that might affect the amount that should
be paid.
14. Contractor's Completion Documents.
a. Receive and review maintenance and operating instructions, schedules, and guarantees.
b. Receive bonds, certificates, or other evidence of insurance not previously submitted and required by
the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other
data approved as provided under paragraph A1.05.A.10, and the annotated record documents which are to be
assembled by Contractor in accordance with the Contract Documents to obtain final payment. The extent of
such ENGINEER's review will be limited as provided in paragraph A1.05.A.10.
c. ENGINEER shall transmit these documents to OWNER.
15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire
Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if
the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER considers the
Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial Completion to OWNER and
Contractor.
16. Additional Tasks. Perform or provide the following additional Construction Phase tasks or
deliverables:
17. (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 finial 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
- Page 5 of 8 Pages
(Exhibit A - ENGINEER's Services)
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 famishing any
of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in
accordance with the Contract Documents.
A1.05 Post- Construction— Phase
A. Upon written authorization from OWNER, ENGINEER, during the Post - Construction Phase, shall:
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.
Not Used.
6. In company with OWNER or OWNER's representative, provide an inspection of the Project within
one month before the end of the Correction Period to ascertain whether any portion of the Work is subject to
correction.
B. The Post - Construction Phase services may commence during the Construction Phase and, if not
otherwise modified in this Exhibit A, will terminate at the end of the Correction Period.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional
Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the
Agreement.
1. Preparation of applications and supporting documents (in addition to those famished under Basic
Services) for private or governmental grants, loans or advances in connection with the Project; preparation or
review of environmental assessments and impact statements; review and evaluation of the effects on the design
requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining
approvals of authorities having jurisdiction over the anticipated environmental impact of the Project.
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify
the accuracy of drawings or other information furnished by OWNER-
3. Services resulting from significant changes in the scope, extent, or character of the portions of the
Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in
size, 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
70 solutions beyond those identified in paragraph A1.01.A.4.
Page 6 of 8 Pages
(Exhibit A - ENGINEER's Services)
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.
Furnishing services of ENG NEER's Consultants for other than Basic Services.
Services attributable to more prime construction contracts than specified in paragraph A1.03.C.
10. Services during out -of -town travel required of ENG12NEER 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. Not Used.
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 A1.05.A.5, and any type of property surveys or related engineering services needed for
the transfer of interests in real property; and providing other special field surveys.
16. Providing Construction Phase services beyond the Contract Times set forth in Exhibit C.
17. Providing assistance in resolving any Hazardous Environmental Condition in compliance with
current Laws and Regulations.
18. Preparing and finishing to OWNER Record Drawings showing appropriate record information
based on Project annotated record documents received from Contractor.
19. (Not Used)
20. Preparing to serve or serving as a consultant or witness for OWNL ER 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 famished by ENGINEER not otherwise provided for in this Agreement.
23. (Added) Property descriptions.
24. (Added) Property, boundary, easement, right -of -way, and other special surveys or data, including
establishing relevant reference points.
Page 7 of 8 Pages
(Exhibit A - ENGINEER's Services)
24. (Added) Property, boundary, easement, right -of -way, and other special surveys or data, including
® establishing relevant reference points.
25. (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.
26. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant
environmental or cultural studies as to the Project, the Site, and adjacent areas.
27. (Added) Provide the services of an independent testing laboratory to perform all inspections, tests,
and approvals of Samples, materials, and equipment required by the Contract Documents, or to evaluate the
performance of materials, equipment, and facilities of OWNER, prior to their incorporation into the Work with
appropriate professional interpretation thereof.
A2.02 Required ,4dditional Services
A. ENGINEER shall perform or fii nish, without requesting or receiving specific advance authorization
from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing
promptly after starting any such Additional Services.
1. Services in connection with Work Change Directives and Change Orders to reflect changes
requested by OWNER so as to make the compensation commensurate with the extent of the Additional Services
rendered.
2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of
substitute materials or equipment other than "or- equal" items; and services after the award of the Construction
Agreement in evaluating and determining the acceptability of a substitution which is found to be inappropriate for
the Project or an excessive number of substitutions.
3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect
result of materials, equipment, or energy shortages.
4. Additional or extended services during construction made necessary by (1) emergencies or acts of
God endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by
fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by
Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6)
default by Contractor.
5. Services (other than Basic Services during the Post - Construction Phase) in connection with any
partial utilization of any part of the Work by OWNER prior to Substantial Completion.
6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or
others in connection with the Work.
7. (Added) Provide necessary field surveys and topographic and utility mapping for design
purposes. Utility mapping will be based upon information obtained from utility owners.
Page 8 of 8 Pages
(Exhibit A - ENGINEER's Services)
® This is EYIMIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated / ",;L,
Initial:
OWNER &/��
ENGINEE
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 Punish copies of all design and construction standards which
OWNER will require to be included m 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. (Modified) Following ENGINEER's assessment of initially - available Project information and data
and upon ENGINEER's request, furnish or otherwise make available such additional Project related information and
data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services. Such additional
information or data would generally include the following:
1. (Deleted).
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. (Modified) Arrange for safe access to and make all provisions for ENGINEER to enter upon public
property as required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and
other documents presented by ENGL EER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
®
H. (Deleted).
21
Page 1 of 2 Pages
(Exhibit B - OWNER's Responsibilities)
•
1. (Deleted).
1. 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
ENGNEER'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.
O. (Deleted).
P. (Deleted).
Q. (Deleted).
R. (Deleted).
22
Page 2 of 2 Pages
(Exhibit B - OWNER's Responsibilities)
s
Provided by City of Baytown
Engineering Department
Reviews construction activities to determine if the construction is in compliance with the contract
documents and good construction practices.
Prepare daily reports.
Verify pay estimate quantities, field changes, requests for information and change orders.
Coordinates between the contractor and other City of Baytown departments.
Assists in interpreting the contract documents
Is the field representative of the Director of Engineering.
Responds to complaints and questions of citizens on the construction project.
Page 1 of 1 Page
Attachment to Exhibit B
3 in
This is EXHIBIT
C, consisting of pages, referred to
and part of the Agreement
between OWNER and
ENGINEER for Professional Services dated
Initial:
�4
OWNER
ENGINEE
Payments to ENGNEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
bona fide negotiated proposal for such
supplemented to include the following agreement of
Work.
the parries:
c. For Work designed or specified but
ARTICLE 4 -- PAYMENTS TO THE ENGINEER --
not constructed upon which no such Bid or
proposal is received, ENGNEER's most
C4.01 For Basic Services Having A Determined
recent opinion,of probable Construction
Scope -- Percentage of Construction Cost
Cost.
i'llethod of Payment
d. Labor furnished by OWNER for
A. OWNER shall pay ENGINEER for
the Project will be included in the
Basic Services set forth in Exhibit A, except for
Construction Cost at current market rates
services of ENGNEER's Resident Project
including a reasonable allowance for
Representative and Post - Construction Phase services,
overhead and profit. Materials and
if any, as follows:
equipment furnished by OWNER will be
included at current market prices.
1. General. An amount equal to
7.5 percent of the Construction Cost.
e. No deduction is to be made from
This amount includes compensation for
ENGNEER's compensation on account of
ENGNEER's Services and services of
any penalty, liquidated damages, or other
ENGNEER's Consultants, if any. The
amounts withheld from payments to
percentage of Construction Cost noted
Contractor(s).
herein accounts for 'labor, overhead, profit,
and Reimbursable Expenses. The total
3. Progress payments:
compensation for services under paragraph
C4.01 is estimated to be S 74.221.00.
a. The portion of the amounts billed
for ENGINEE'R's services which is on
2. As a basis for payment to
account of the! Percentage of Construction
ENGINEER, Construction Cost will be based on
Cost will be based upon ENGNEER's
one or more of the following determinations with
estimate of the proportion of the total
precedence in the order listed for Work designed
services actually completed during the
or specified by ENGINEER:
billing. period to the Percentage of
Construction Cost.
a. For Work designed or specified and
incorporated in the completed Project, the
b. Upon conclusion of each phase of
actual final cost of the work performed by
Basic Services, OWNER shall pay such
Contractor and paid by OWNER.
additional amount, if any, as may be
necessary to bring total compensation paid
b. For Work designed or specified but
during such phase on account of the
not constructed, the lowest bona fide Bid
from a bidder for such
0
percentage of Construction Cost to the
following estimated percentages of total
received qualified
Work; or, if the Work is not Bid, the lowest
compensation, payable on account of the
Page 1 of 3 pages
Sheet C-4 (Exhibit C - All Other Services /Charges -- Direct Labor Costs Times a
Factor Method of Payment
percentage of Construction Cost for all
Study and Report Phase 10
%
Preliminary Design Phase 20
%
Final Design Phase 50
%
Bidding or Negotiating Phase 5
%
Construction Phase 15
%
100 %
c. ENGINEER may alter the
distribution of compensation between
individual phases of the work noted herein
but shall not exceed the total percent fee
unless approved in writing by the OWNER.
4. ENGINEER's estimated total
compensation is conditioned on Contract Times
to complete the Work not exceeding 12
months. Should the Contract Times to complete
the Work be extended beyond this period, the
total compensation to ENGINEER shall be
appropriately adjusted.
Not Used.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Afethod of Payment
A. Not Used.
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for
Additional Services as follows:
1. General. For services of
ENGINEER's employees engaged directly on
the Project pursuant to paragraph A2.01 or
A2.02 of Exhibit A of the Agreement, except for
services as a consultant or witness under
paragraph A2.0I.A.20, an amount equal to
ENGINEER's Direct Labor Costs times a Factor
of 2.65 , plus Reimbursable Expenses and
ENGINEER's Consultant's charges, if any.
(Not Used).
phases of Basic Services:
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
Appendix 1 of this Exhibit C.
B. (Modified) Reimbursable Expenses
include the following categories: reproduction of
Drawings, Specification's, Bidding Documents, and
similar Project - related items in addition to those
required under Exhibit A; and, if authorized in
advance by OWNER.
C. The amounts payable to
ENGINEER for Reimbursable Expenses will be the
Project - related internal expenses actually incurred or
allocated by ENGINEER, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of 1.1
D. The Reimbursable Expenses
Schedule will be adjusted annually (as of Jan 1)
to reflect equitable changes in the compensation
payable to ENGINEER.
C4.05 For ENGINEER's Consultant's Charges
A. (Modified) Whenever
compensation to ENGINEER herein is stated to
include charges of ENGINEER's Consultants, those
charges shall be the amounts billed by ENGINEER's
Consultants to ENGINEER times a Factor of 1.1
For budgetary purposes the consultant charges,
including the factor, are estimated as follows:
(1) Geotechnical S 5,000
(2) Material Testing 312,000
Survey costs shall not exceed $17,000.
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries
and wages paid to ENN
GEER's employees but does
not include payroll related costs or benefits.
B. The Direct Labor Costs and the
Factor applied to Direct Labor Costs will be adjusted
annually (as of Jan 1) to reflect equitable changes
in compensation payable to ENGNEER.
4.07 Factors
C4.04 For Reimbursable Expenses A. The Direct Labor Costs Factor
includes the cost of customary and statutory benefits
A. When not included in including, but not limited to, social security
compensation for Basic Services under paragraph contributions, unemployment, excise and payroll
Page 2 of 3 pages
(Exhibit C - Basic Services With Determined Scope -- Percentage of
Sheet C -5 Construction Cost Method of Payment)
taxes, workers' compensation, health and retirement
® benefits, bonuses, sick leave, vacation, and holiday
pay applicable thereto; the cost of general and
administrative overhead, which includes salaries and
wages of principals and employees engaged in
business operations not directly chargeable to
projects, plus non- Project operating costs, including
but not limited to, business taxes, legal, rent, utilities,
office supplies, insurance, and other operating costs;
plus operating margin or profit.
B. External Reimbursable Expenses
and ENGINEER's Consultant's Factors include
ENGINEER's overhead and profit associated with
ENGINEER's responsibility for the administration of
such services and costs.
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of
the amounts billed for ENGINEER's services which
are identified in paragraphs C4.02 and C4.03, will be
based on the Direct Labor Costs for the cumulative
hours charged to the Project during the billing period
by all of ENGINEER's employees, times the
Applicable Direct Labor Costs Factor, plus
Reimbursable Expenses and ENGINEER's
Consultant's charges, if any.
B. Extended Contract Times. Should
the Contract Times to complete the Work be
extended beyond the period identified in paragraph
C4.01, payment for ENGINEER's services on the
basis of the Direct Labor Costs Times a Factor
Method of Payment shall be continued.
C. Estimated Compensation Amounts.
1. ENGINEER's estimate of the
amounts that will become payable for Basic
Services are only estimates for planning
purposes, are not binding on the parties, and are
not the minimum or maximum amounts payable
to ENGINEER under the Agreement.
2. When estimated compensation
amounts have been stated herein and it
subsequently becomes apparent to ENGINEER
that a compensation amount thus estimated will
be exceeded, ENGINEER shall give OWNER
written notice thereof. Promptly thereafter
OWNER and ENGINEER shall review the
matter of services remaining to be performed and
compensation for such services. OWNER shall
either agree to such compensation exceeding said
estimated amount or OWNER and ENGINEER
shall agree to a reduction in the remaining
services to be rendered by ENGINEER, so that
total compensation for such services will not
exceed said estimated amount when such
services are completed. If ENGINEER exceeds
the estimated amount before OWNER and
ENGINEER have agreed to an increase in the
compensation due ENGNEER or a reduction in
the remaining services, the ENGINEER shall be
paid for all services rendered hereunder.
Page 3 of 3 pages
Sheet C -6 (Exhibit C - All Other Services /Charges -- Direct Labor Costs Times a
Factor Method of Payment
This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and
ENGINEER for Professional Services dated / A 0/ -
Initial:
OWNER /"
ENGINEE
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
�� i
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
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.
0
Title:
Dated:
Ell
Page I of 2 Pages
(Exhibit E — Notice of Acceptability of work)
El
(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.
S. (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 Punish 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 ENGINEER
for Professional Services dated j 12-
0/ .
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parries.
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 ENG tI�tEER'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: 51,000,000
Products & Completed Operations: 51,000,000
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: 5500,000
a. Coverage for "Any Auto."
Workers Compensation
a. Statutory employer's liability $500,000
b. Waiver of subrogation in favor of the OWNER.
0 Errors & Omissions (E &O)
Limit: $250,000
a. For all engineers, and/or design companies.
Page 1 of 2 Pages
(Exhibit G - Insurance)
b. Claims -made form is acceptable.
AML C. Coverage will be in force for three (3) years after project is completed.
qF
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance
and endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage
afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30)
days' prior written notice has been given to the OWNER via certified mail, return receipt requested.
L11
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all
subcontractors.
The following are general requirements applicable to all policies:
8. AlNI Best Rating of A:VII or better.
b. Insurance carvers licensed and admitted to do business in State of Texas will be accepted.
C. Liability policies will be on occurrence form. E & O can be on claims -made form.
d. City of Baytown, its officials and employees are to be added as Additional Insured to liability
policies.
e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to City of Baytown's representative. Certificates of
insurance showing evidence of insurance coverage shall be provided to City of Baytown's
representative prior to execution of this agreement.
f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all
insurance coverage shall be furnished to City of Baytown's representative.
g. City of Baytown reserves the right to reject any proposal that does not meet the minimum insurance
requirements outlined above.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
d�
Initial:
OVI -NER
ENG iNEEL\✓ !ems
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
H.ARIVILESS 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 HIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR
DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES
(HEREINAFTER, WHETHER SINGULAR OR PLURAL,
COLLECTIVELY REFERRED TO AS "ENGINEER "). IN THE
EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER,
SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST
EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT
ALLOWED REGARDLESS OF WHETHER THE CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR
LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART
FROM THE NEGLIGENCE OF ENGINEER. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
ENGINEER AND OWNER, THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO
INDEMNIFY AND PROTECT OWNER FROM THE
CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO
THE EXTENT ALLOWED BY LAW, WHERE THAT
NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE
RESULTING INJURY OR DEATH OF ENGINEER AND /OR (II)
ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH
INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY
ARISING FROM THE PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER
THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE
Page 1 of 2 Pages
(Exhibit K - Indemnification)
El
E-1
OF OWNER. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON
OF ANY OF THE ABOVE, THE ENGINEER FURTHER AGREES
AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY AND THE ENGINEER.
The indemnity provided hereinabove shall survive the termination and/or expiration of
this Agreement.
ENGINEER assumes full responsibility for its work performed hereunder and
hereby releases, relinquishes and discharges OWNER, its officers, agents, and
employees from all claims, demands, and causes of action of every kind and
character for any injury to or death of any person and /or any loss of or damage to
any property that is caused by or alleged to be caused by, arising out of, or in
connection with ENGINEER's work to be performed hereunder. This release shall
apply with respect to ENGINEER's work regardless of whether said claims,
demands, and causes of action are covered in whole or in part by insurance.
The protections afforded to OWNER in this Paragraph 6.11 shall control and
supercede any apportionment of liability or release of liability contained elsewhere
in the Contract Documents.
Page 2 of 2 Pages
(Exhibit K - Indemnification)