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Ordinance No. 9,248
ORDINANCE NO. 9248 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH FUGRO -BRE, INC., TO CREATE A PAVEMENT MANAGEMENT SYSTEM FOR THE STREET ASSESSMENT PROGRAM; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED TEN THOUSAND AND NO /100 DOLLARS ($110,000.00); 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 to execute a professional services agreement with Fugro -BRE, Inc., to create a pavement management system for the street assessment 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 Fugro -BRE, Inc., in an amount not to exceed ONE HUNDRED TEN THOUSAND AND NO /100 DOLLARS ($110,000.00) for professional engineering services in accordance with the contract. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND N01100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Sections 2 hereof may not be increased by more than twenty-five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 25th day of October, 2001. PETE C. ALFARO, Ma or ATTEST: GAY V. SMITH, City Clerk APPROVED AS TO FORM: ACIO RAMIREZ, SR.' Attorney c:\klh279\Council\Ordinance\Fugro-BREOrdinance 4 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of October 2001 ( "Effective Date ") Between The City of Baytown ( "OWNER ") And Fugro - BRE, Inc ( "ENGINEER ") OWNER intends to create a verifiable pavement management system. This system is to be based on ENGINEER provided pavement condition surveys and collected ride quality data training the City of Baytown and implementing of MicroPAVER software, and preparation of related reports and recommendations as further defined in the ENGINEER'S proposal, see exhibit "A ", (THE "PROJECT "). OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Engineer for Professional Services Page 1 of 11 IT A TABLE OF CONTENTS Page ARTICLE 1 - SERVICES OF ENGINEER ........................................................................................... ..............................3 1.01 Scope .................................:.................................................................................................. ..............................3 ARTICLE 2 - OWNER'S RESPONSIBILITIES ................................................................................... ..............................3 2.01 General ................................................................................................................................. ..............................3 ARTICLE 3 - TIN[ES FOR RENDERING SERVICES .......................................................:................ ............................... 3 3.01 General ................................................................................................................................. ..............................3 3.02 Suspension .......................................................................................................................... ............................... 3 ARTICLE 4 - PAYMENTS TO ENGINEER ........................................................................................ ............................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ............................... 3 4.02 Other Provisions Concerning Payments .............................. ARTICLE 5 - OPINIONS OF COST ...................................................................................................... ..............................4 5.01 Opinions of Probable Construction Cost ............................................................................ ..............................4 5.02 Designing to Construction Cost Limit ................................................................................ ..............................4 5.03 Opinions of Total Project Costs .......................................................................................... ..............................4 ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................... ..............................4 6.01 Standards of Performance ................................................................................................... ............................... 4 6.02 Authorized Project Representatives .................................................................................... ............................... 5 6.03 Design without Construction Phase Services ...................................................................... ..............................5 6.04 Use of Documents ............................................................................................................... ............................... 5 6.05 Insurance ............................................................................................................................. ............................... 6 6.06 Termination .......................................................................................................................... ..............................6 6.07 Controlling Law ................................................................................................................... ..............................6 6.08 Successors, Assigns, and Beneficiaries .............................................................................. ............................... 6 6.09 Dispute Resolution ............................................................................................................... ..............................7 6.10 Hazardous Environmental Condition .....:............................................................................ ..............................7 6.11 Allocation of Risks ............................................................................................................. ............................... 7 6.12 Notices ................................................................................................................................. ............................... 7 6.13 Survival .......................................................................... ............................... 6.14 Severability ......................................................................................................................... ............................... 7 6.15 Waiver .................................................................................................................................. ..............................7 6.16 Headings ............................................................................................................................... ..............................7 ARTICLE 7 - DEFINITIONS ............................................................................................................... .............:................. 7 7.01 Defined Terms ................................................................................................................... ............................... 7 ARTICLE 8 EXFUBITS AND SPECIAL PROVISIONS ................................................................... .............................10 8.01 Exhibits Included ................................................................................................................ .............................10 8.02 Total Agreement ................................................................................................................. .............................10 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 11 ARTICLE 1 - SERVICES OF ENGINEER 1.01 Scope A. ENGINEER shall provide the Basic Services set forth herein and in Exhibit A. B. Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. . C. (Modified) Additional services shall not exceed $2530.00 and shall be billed per the rates listed on P -2001 (Jan 2001) of Exhibit A. ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. ENGINEER's services and compensation under this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion. Unless specific periods of time or specific dates for providing services are specified in this Agreement, ENGINEER's obligation to render services hereunder will be for a period which may reasonably be required for the completion of said services. B. If in this Agreement specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided, and if such periods of time or dates are changed through no fault of ENGINEER, the rates and amounts of compensation provided for herein shall be subject to equitable adjustment. If OWNER has requested changes in the scope, extent, or character of the Project, the time of performance of ENGINEER's services shall be adjusted equitably. C. For purposes of this Agreement the tern "day" means a calendar day of 24 hours. 3.02 Suspension A. (Modified) If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if ENGINEER's services are delayed through no fault of ENGINEER, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. B. If ENGINEER's services are delayed or suspended in whole or in part by OWNER, or if ENGINEER's services are extended by Contractor's actions or inactions for more than 90 days through no fault of ENGINEER, ENGINEER shall be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by ENGINEER in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under Exhibit A as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A as set forth in Exhibit C. C. (Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.0l.B, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to ENGINEER incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and ENGINEER shall not make a claim against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with ENGINEER's standard invoicing practices and will be submitted to OWNER by ENGINEER, unless otherwise agreed. The amount billed in each invoice will be calculated as set forth in Exhibit C. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 11 P_.� E, B. (Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt thereof. If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice therefor, the amounts due ENGINEER will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) after the 30th day. ENGINEER may after giving seven days written notice to OWNER suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that ENGINEER will not charge any interest or penalty as set forth herein on any portion of an invoice that is 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 furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. In the event of termination by OWNER for convenience or by ENGINEER for cause, ENGINEER, in addition to invoicing for those items identified in subparagraph 4.02.13.1, shall be entitled to invoice OWNER and shall be paid a reasonable amount for services and expenses directly attributable to termination, both before and after the effective date of termination, such as reassignment of personnel, costs of terminating contracts with ENGINEER's Consultants, and other related close -out costs, using methods and, rates for Additional Services as set forth in Exhibit C. E. (Modified) Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. Not used 5.02 Designing to Construction Cost Limit A. Not used. 5.03 Opinions of Total Project Costs A. Not used. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. The standard of care for all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by members of ENGINEER's profession practicing under similar circumstances at the same time and in the same locality. ENGINEER makes no warranties, express or implied, under this Agreement or otherwise, in connection with ENGINEER's services. B. ENGINEER shall be responsible for the technical accuracy of its services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER - furnished information. C. ENGINEER shall perform or furnish professional engineering and related services in all phases of the Project to which this Agreement applies. ENGINEER shall serve as OWNER's prime professional for the Project. ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER- Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 11 v D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER- mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. E. (Modified) OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information famished by OWNER to ENGINEER pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. Not used. H. (Modified) ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence ENGINEER cannot ascertain; provided, that ENGINEER has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. Not used. J. Not used. K. Not used. L. Not used. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or 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 Ply 6.03 Design without Construction Phase Services A. Not used.. B. Not used. 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 ENGINEER's consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the ENGINEER shall be required to tender to OWNER all Instruments of Service; provided OWNER has paid all monies, excluding any disputed amount, due and owing to. ENGINEER in accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes that the OWNER sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a condition to the OWNER's use of the Instruments of Service, the OWNER hereby expressly agrees to remove the ENGINEER's name and all references to the ENGINEER, and its consultants from the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER. This release of claims for the matters covered in this Paragraph 6.04 shall be for the benefit of the ENGINEER, its officers, and employees, as well as their successors and assigns. B. (Modified) Copies of OWNER - furnished data that may be relied upon by ENGINEER are limited to the printed copies that are delivered to ENGINEER pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to ENGINEER are only for convenience of ENGINEER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 11 D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without ® authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60 -day acceptance period will be corrected by the party delivering the electronic files. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER's sole risk and OWNER hereby releases ENGINEER from any liability associated solely with the reuse of the Documents. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used.. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: 1. For cause, a. By either party upon 30 days written notice in -the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party; or b. By ENGINEER upon seven days written notice if ENGINEER is being requested by OWNER to furnish or perform services contrary to ENGINEER's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof, provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by ENGINEER. B. Not used. 6.07 Controlling Law A. This Agreement. is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.B the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of i I E7 Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Not used. 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 Not used. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.12 Notices A. Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. 6.13 Survival A. All express representations, indemnifications, or limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 6.15 Waiver A. Non - enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof: 1. Addenda -- Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services- -The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement - -This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 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. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 11 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 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 ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price - -The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times - -The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Substantial Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 16. Contractor - -An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period- -The time after Substantial Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective - -An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment. 19. Documents - -Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drawings - -That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 11 1� 21. Effective Date of the Construction Agreement- - The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement - -The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. ENGINEER's Consultants -- Individuals or entities having a contract with ENGINEER to furnish services with respect to this Project as ENGINEER's independent professional associates, consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. 24. Field Order - -A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 26. Hazardous Environmental Condition- -The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 27. Hazardous Waste - -The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 28. Laws and Regulations; Laws or Regulations- - Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 29. PCB's -- Polychlorinated biphenyls. 30. Petroleum -- Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 31. Radioactive Materials -- Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 32. Record Drawings - -The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 33. Reimbursable Expenses- -The expenses incurred directly by ENGINEER in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 34. Resident Project Representative- -The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 35. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 36. Shop Drawings - -All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to ENGINEER to illustrate 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 furnished by OWNER which are designated for use of Contractor. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 11 U 38. Specifications- -That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 39. Substantial Completion - -The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 40. Supplementary Conditions - -That part of the Contract Documents which amends or supplements the General Conditions. 41. Total Project Costs - -The sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 42. Work - -The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 43. Work Change Directive - -A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 44. Written Amendment - -A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non - engineering or non - technical rather than strictly construction - related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "Scope of. Work and Cost Estimate, Pavement management System, Baytown, Texas" consisting of the Engineer's Proposal, consisting of 6 pages, dated August 3, 2001. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of 1 page. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative, " is not used. E. Exhibit E, " Notice of Acceptability of Work" is not used. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. I. Exhibit 1, "Allocation of Risks," is not used. J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages I to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled . by a duly . executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 11 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: Address for giving notices: P.O. BOX 424 Baytown, Texas 77422 -0424 Designated Representative (paragraph 6.02.A): W. R. (Bill) Pedersen, P.E. Title: Director of Engineering and Inspections Phone Number: (281) 420 -6549 Facsimile Number: (281) 420 -6586 E -Mail Address: wrpedersen @baytown.org ENGINEER: By: V, f Title C�Pr�n6�Js �`�lky,Jpe,�2 �i,�42o-� Date Signed L ks / 0 Address for giving notices: 9L,13 CC2o S s i kG aw E IBC Designated Representative (paragraph 6.02.A): Title: ©F rt mJ3 kN- 11j,Rr, s(L �L•r zo- Phone Number:: Facsimile Number: CS ► Z� 9 °73 - 9 sb 5 E -Mail Address: QC1C1e11 @i (o. Corte Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 11 FUGRO -BRE, INC. Project No. 1100 -1185 August 3, 2001 Mr. W.R. Pedersen;.P.E. City of Baytown Engineering Department 2401 Market Street Baytown, Texas 77522 -0424 Scope of Work and Cost Proposal Pavement Management System Baytown, Texas SCOPE OF WORK GRIM 8613 Cross Park Drive Austin, Texas 78754 Tel : 512- 977 -1800 Fax : 512- 973 -9565 Establishing an efficient means for managing the growing pavement network (currently, 350 centerline miles) will help the city of Baytown (City) staff with their responsibility to produce cost effective pavement maintenance decisions. City personnel have recognized the need for such a tool and the advantages of implementing a pavement management system with a proven track record. MicroPAVER is a complete pavement management software package which has been developed by the Corps of Engineers (COE) and is widely accepted by many municipalities, through the American Public Works Association (APWA), the Corps of Engineers (COE), and the Department of Defense, as an excellent tool for assisting agencies and their staff to utilize their limited resources to fullest potential. To assist the city of Baytown implement the MicroPAVER system, Fugro -BRE will provide the following services: 1. Provide one day of MicroPAVER training prior to data collection; 2. Conduct pavement condition surveys, 3. Collect ride quality data; 4. Assist City in developing, utilizing, and initial implementation of pavement management system; 5. Provide APWA MicroPAVER software to the City; 6. Prepare report of findings and recommendations. The following sections of this proposal describe the scope of- our services, expected information to be provided and estimated schedule. 1 'I A member of the Fugro group of companies with offices throughout the world. �GRa Mr. W. R. Pedersen, P.E. Proposal No. 1100 -1185 - - - -- City. of. Baytown _.--__-__—_---Page 2_of Task 1. Train City Personnel to Conduct Pavement Evaluations Using MicroPAVER Two facets of data collection exist: Inventory an Historical Data Collection Field Data Collection. Inventory data collection is the identification of the pavement sections to be managed. This includes such information as pavement age, approximate layer thicknesses (if readily available), variations in traffic or any other such attributes which separate one section of pavement from another in terms of how they perform, and ultimately, how they will be handled for maintenance or rehabilitation decisions. It is our understanding that the City will be providing a copy of their inventory of streets along with the other key elements of inventory data on those streets. Field data collection predominately involves the recording of visual pavement surface distress data. A one -day training workshop will be provided to review the MicroPAVER distress identification system (and the associated distress identification manual). Mr. Tom Freeman who teaches the course for APWA will conduct the training workshop. Task 2. Conduct Pavement Condition Surveys Two to four experienced visual distress raters from Fugro -BRE will perform the visual surveys. These surveys will be performed in accordance with MicroPAVER guidelines. This is a sampling process that allows for detailed surveys to be conducted on sufficient portions of each street segment so that their existing pavement condition can be documented. Task 3. Collect Ride Quality Data Ride quality data will be conducted using a KJ Law Lightweight Profilometer. The system satisfies the Class II designation of ASTM Specification E950. Data will be collected in the inside wheelpath in one direction on streets less than 42 ft. in width. For streets wider than 42 ft, two passes of data will be collected on opposite sides of the roadway. The data will be processed and entered into the Access database housing the other pavement management data. A separate table will be created to house the ride quality data, as MicroPAVER does not have a field for International Roughness Index (IRI). The table will contain the section ID, the test date, the average IRI, the standard deviation of the IRI, and the number of observations included for each pavement section. This Access database will be provided to the City upon completion of the data entry. v - GRG Mr. W. R. Pedersen, P.E. Proposal No. 1100 -1185 City of. Baytown ..._.. -- - _..__ -_ -. _ ___ __._ -_ -_ __ -_ ____ _ _ __.___ _. ----------- _.._Page..3 -of_6. Task 4. Assist City_ in Developing, Utilizing, and Initial Implementation of Management System All of the distress data collected will be entered into MicroPAVER by Fugro -BRE. In addition, the system will be set up to include all of the initial assumptions used by the software. These assumptions will be discussed with the City at this time to ensure some continuity in their decision - making process. When all the data collection and entry has been completed, reports will be generated utilizing the system to show: • Optimal Maintenance • Current Pavement Condition Rankings • Future Monitoring Needs The streets will be ranked based on Pavement Condition Index (PCI) and IRI separately and collectively. Based on these reports, we will work with City to determine a hierarchy for rehabilitation priorities. After the data have been collected and entered into the MicroPAVER system, Mr. Tom Freeman will be contacted to perform a one -day training course on the use of the software. The training will allow City personnel to become acquainted with report generation capabilities of the MicroPAVER system. Task 5. Provide MicroPAVER software to the City Fugro -BRE will purchase, install, trouble shoot, train City personnel, and provide technical support for running and interpreting the MicroPAVER software. We propose that the purchase of the MicroPAVER software be delayed until near the end of the contract. The APWA provides support and will make upgrades available free of charge for one calendar year after purchase of the software. Fugro -BRE already has the current version of the MicroPAVER software (Version 4.2) installed. Delaying the purchase of the software will be a benefit to the City since they will remain eligible for software upgrades for a longer time. We will: Develop the database based upon the street inventory provided by the City, Install the software and database on the machine identified by the City, Troubleshoot problems that might occur, Provide a one -day training class where as many City personnel can attend as possible, R�� Mr. W. R. Pedersen, P.E. Proposal No. 1100 -1185 UWE City of Baytown---.------ -- — - - - -- - - - - -- - - - -- Page -4. of 6- - -- — - - - - - - -- Provide technical support for MicroPAVER for the duration of the project. This includes answering questions regarding use of the software and report generation, but does not include software support, which would be provided by APWA.. Task 6. Prepare Report of Findings A Final Report will be submitted upon completion of the project. The report will include: • A discussion of the implementation process, • Recommendations for optimal maintenance and rehabilitation programs • A summary of current pavement condition, and • Recommendations for future monitoring needs. Cost Estimate Based on the scope of work outlined above and Fee Schedule P -2001, the cost estimate for this study is presented below: Task 1. Initial MicroPAVER Trainin ConsultantTom Feeman ................................. ............................... ......................... 750.00 Graduate Engineer — 16 Hours @ $70/ Hour ... ................:::............ .......................1,120.00 Engineering Technician — 16 Hours @ $45/ Hour ............................ .........................720.00 Project Engineer— 16 Hours @ $90/ Hour ....... ............................... .......................1,440.00 SubtotalTask 1 ........................................... ............................... $4,030.00 Task 2. Conduct Pavement Condition Survevs Graduate Engineer — 375 hours @ $70 /Hour ...................... ............................... 26,250.00 Engineering Technician — 420 hours @ $45 /Hour ........................ ......................18,900.00 Per Diem - 38 Days, 2 People @ $90/ Night ........................... ............................... 6,840.00 Mobilization - 400 Miles/Trip, 3 Trips @ $2/Mile .................... ............................... 2,400.00 Subtotal Task 2 ......................................... ............................... $54,390.00 Task 3. Collect Ride Quality Data Engineering Technician — 400 Hours @ $45/ Hour ........................ ......................18,000.00 Equipment Costs — 20 Days @ $ 250 / Day .............................. ............................... 5,000.00 Per Diem - 20 Days, 2 People @ $90/ Night .... ............................... .......................3,600.00 Mobilization - 400 Miles/Trip, 2 Trips @ $2/Mile ............................ .......................1,600.00 Graduate Engineer — 40 Hours @ $70/ Hour ... ............................... .......................2,800.00 Subtotal Task 3 .................... ............................... .....................$31,000.00 Gan r Mr. W. R. Pedersen, P.E. Proposal No. 1100 -1185 - - - -._ City -of. Baytown---_... Task 4. Implementation and Trainin MicroPAVER Training (Tom Freeman) ............ ............................... .........................750.00 Project Engineer — 40 Hours @ $90/ Hour .............................. ............................... 3,600.00 Graduate Engineer_— 80 Hours @ $70/ Hour ... ............................... .......................5,600.00 Engineering Technician — 40 Hours @ $45/ Hour ........................... .......................1,800.00 Subtotal Task 4 ......................................... ............................... $11,750.00 Task 5. Provide MicroPAVER to the Cit MicroPAVERSoftware ..................................... ............................... .......................1000.00 MicroPAVER Manuals — 2 @ $40 /manual ........ ............................... ..........................80.00 Project Engineer — 8 hours @ $90 /Hour .......... ............................... ......................... 720.00 Subtotal Task 5 ..................... ............................... ......................$1,800.00 Task 6. Report of Findings Project Engineer — 40 Hours @ $90/ Hour ....... ............................... ....................... 3,600.00 Word Processor — 20 Hours @ $45 /Hour ................................. ............................... 900.00 Subtotal Task 6 ........................................... ............................... $4,500.00 TOTAL................................................................. ............................... $107,470.00 Schedule Generally, we can initiate the services requested within two weeks of notice to proceed. Under normal circumstances, once all results have been obtained, report preparation will take an additional two weeks to complete. We appreciate the opportunity to submit this proposed scope and look forward to working with you on this project. Please call if we may be of any additional assistance. Sincerely, FUGRO -BRE, INC. f Jerome F. Daleiden, P.E. Operations Manager C Am impson, P.E. Project Engineer r` Senior Consultant $ 135.00 /Hour Y Senior Project Manager $ TTUG�® Schedule P -2001 (January 2001) $ 110.00 /Hour 2.4. Project Engineer $ 90.00 /Hour 2.5. FEES FOR PAVEMENT ENGINEERING SERVICES $ 1. Field Investigation Senior Engineering Technician $ 1.1. Mobilization and demobilization, per mobilization $ 2.00 /Mile 1.2. Nondestructive Pavement Deflection Testing Word Processor $ 45.00 /Hour 1.2.1 Falling Weight Deflectometer (daytime) $ 225.00 /Hour 1.2.2 Falling Weight Deflectometer (nighttime) . $ 250.00 /Hour 0.15 /Copy 1.2.3 Dynaflect (daytime) $ 125.00 /Hour 10.00 /Copy 1.2.4 Dynaflect (nighttime) $ 150.00 /Hour 1.3 Video edge drain inspection $ 70.00 /Hour 1.4. Hourly charges for field coordination, layout, and for other Transportation $ 0.35 /Mile reasons beyond our control $ 100.00 /Hour 1.5. Traffic Control $ 175.00 /Hour 1.6 Per Diem for out -of -town assignments, per person $ 90.00 /Night C 2. Engineering and Technical Personnel 2.1. Senior Consultant $ 135.00 /Hour 2.2. Senior Project Manager $ 120.00 /Hour 2.3. Project Manager $ 110.00 /Hour 2.4. Project Engineer $ 90.00 /Hour 2.5. Graduate Engineer $ 70.00 /Hour 2.6. Senior Engineering Technician $ 60.00 /Hour 2.7. Technician and Draftsperson $ 45.00 /Hour 2.8. Word Processor $ 45.00 /Hour 3. Report Reproduction and Miscellaneous 3.1. Xerox reproduction $ 0.15 /Copy 3.2. Binding with plastic ring covers $ 10.00 /Copy 3.3. Outside services, printing, reproduction, etc. Cost + 15% 3.4. Computer assistance Cost + 15% 3.5. Transportation $ 0.35 /Mile Rates for other tests and services quoted on request. This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER{ OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Not used. 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. Provide to the Engineer the current City of Baytown Street Condition Survey in electronic format. 2. Zoning, deed, and other land use restrictions. 3. (Deleted). 4. (Deleted). 5. (Deleted). (Deleted). D. (Deleted). E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in 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 ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. (Deleted). 0 I. (Deleted). Page 1 of 2 (Exhibit B - OWNER's Responsibilities) This is EXIMIT C, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated , Initial: OWNER ENGINEER Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 -- PAYMENTS TO THE ENGINEER C4.01 (Modified) For Basic Services Having A Determined Scope - Estimated but not to exceed amount Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A, except for services of ENGINEER's Resident Project Representative and Post - Construction Phase services, if any, as follows: 1. An estimated amount, not to exceed the amount of $ 107,470.00 based on the following distribution of compensation as provided in the attached proposal, Exhibit A, dated August 3, 2001 2. ENGINEER may alter the distribution of compensation between individual phases noted herein to be .consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the OWNER. 3. The estimated but not to exceed amount includes compensation for ENGINEER's services and services of ENGINEER's Consultants, if any. Appropriate amounts have been incorporated in the estimated but not to exceed amount to account for labor, overhead, profit, and Reimbursable Expenses. 4. The portion of the estimated but not to exceed amount billed for ENGINEER's services will be based upon ENGINEER's estimate of the proportion of the total services actually completed during the billing period to the Lump Sum. 5. The estimated but not to exceed amount is conditioned on Contract Times to complete the Work before the end of January, 2002 excepting weather delays. Should the Contract Times to complete the Work be extended beyond this period, the total compensation to ENGINEER shall be appropriately adjusted. C4.02 For Basic Services Having An Undetermined Scope --Direct Labor Costs Times a Factor Method 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 an amount equal to ENGINEER's Costs per schedule P -2001 (January 2001) as provided in the Engineer's proposal plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. • 2. (Not Used). Page 1 of 2 pages Sheet C -1 (Exhibit C - Basic Services With Determined Scope - Estimated, not to exceed Method) C4.04 For Reimbursable Expenses A. Per Engineer's proposal, Exhibit A, dated August 3, 2001. B. (Modified) Reimbursable Expenses include the following categories: reproduction of Drawings, Specifications, 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 per Engineer's proposal dated August 3, 2001. (Exhibit A) D. Not used. C4.05 For ENGINEER's Consultant's Charges (1) A. Not used C4.06 Direct Labor Costs A. Per Engineer's proposal dated August 3, 2001. B. Not used. 4.07 Factors A. Not used. B. Not used. 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 percentage complete of the task as billed. B. Not used C. Not used. Page 2 of 2 Pages (Exhibit C) This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether such operations and /or performance be by the ENGINEER, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability (CGL) General Aggregate: $1,000,000 Products & Completed Operations: $1,000,000 Personal & Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: $500,000 a. Coverage for "Any Auto." Errors & Omissions (E&O) ® Limit: $500,000 a. For all engineers, and /or design companies. Page 1 of 2 Pages (Exhibit G - Insurance) b. Claims -made form is acceptable. C. Coverage will be in force for three (3) years after project is completed. 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. The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: a. AM Best Rating of A:VII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. C. Liability policies will be on occurrence form. E & O can be on claims -made form. d. City of Baytown, its officials and employees are to be added as Additional Insured to liability policies. e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and /or certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to execution of this agreement. f. qu o ll i g. City of Baytown reserves the right to reject any proposal that does not meet the minimum insurance requirements outlined above. t�cc l_ F�Vi DE �fCPipJG ✓1icFjE� -:5 l 0 /1q a) Page 2 of 2 Pages (Exhibit G - Insurance) El This is EDIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER –' -— ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "OWNER ") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "ENGINEER"). IN THE EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER, SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT ALLOWED REGARDLESS OF WHETHER THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF OWNER OR (In 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 (In ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR Page 1 of 2 Pages (Exhibit K - Indemnification) C PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF OWNER. IN THE EVENT THAT, ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY AND THE ENGINEER. The indemnity provided hereinabove shall survive the termination and /or expiration of this Agreement. ENGINEER assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and /or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with ENGINEER's work to be performed hereunder. This release shall apply with respect to ENGINEER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Paragraph 6.11 shall control and supercede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Page 2 of 2 Pages (Exhibit K - Indemnification)