Ordinance No. 9,449ORDINANCE NO. 9449
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER OF THE CITY OF
BAYTOWN TO EXECUTE A PROFESSIONAL SERVICES CONTRACT WITH
LANGFORD ENGINEERING, INC., FOR THE DESIGN OF THE BIG MISSOURI LIFT
STATION REHABILITATION PROJECT; AUTHORIZING PAYMENT BY THE CITY
OF BAYTOWN OF AN AMOUNT NOT TO EXCEED TWO HUNDRED FORTY -SIX
THOUSAND EIGHT HUNDRED SEVENTY AND N0 1100 DOLLARS ($246,870.00);
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 of the City of Baytown to execute a professional services contract with Langford Engineering,
Inc., for the design of the Big Missouri Lift Station Rehabilitation Project. A copy of said contract is attached
hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Langford
Engineering, Inc., for the design of the Big Missouri Lift Station Rehabilitation Project of an amount not to
exceed TWO HUNDRED FORTY -SIX THOUSAND EIGHT HUNDRED SEVENTY AND NO /100
DOLLARS ($246,870.00), pursuant to the contract.
Section 3: That pursuant to the provisions of Texas Local Government Code Annotated
§ 252.048, the City Manager is hereby granted general authority to approve any change order involving a
decrease or an increase in costs of TWENTY -FIVE THOUSAND AND NO/ 100 DOLLARS ($25,000.00) or
less, subject to the provision that the original contract price may not be increased by more than twenty -five
percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor to
such decrease.
Section 4: This ordinance shall take effect immediately from and after its passage by the City
Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 24'h day of October, 2002.
/:9Z
PETE C. ALFARO, Mayor
ATTES '
G ' W. SMITH, City Clerk
. APPROVED AS TO FORM:
ACIO RAMIREZ, S City Attorney
FAKarenTiles\City Council\ Ordinancesl AuthorizeContract4BigMissouriProject .doc
i
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of
Between
The City of Baytown ( "OWNER ")
And
Langford Engineering, Inc. ( "ENGINEER)
( "Effective Date ").
OWNER intends to Rehabilitate Big Missouri Lift Station: Construct New Force Main to Serve Big Missouri Lift
Station; Rehabilitate Various Sanitary Sewer collection Lines and Construct Overflow Collection Lines in the
Huggins Drive Collection Area, in Accordance with Recommendations Described in the Report Entitled "Sanitary
Sewer Investigation and Recommended Sanitary Sewer Collection System Upgrades Relating to Huggins Drive and
West Main Street Sanitary Sewer Mains" (Amended May 8, 2002). ( "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 12
EXHIBIT A
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TABLE OF CONTENTS Page
ARTICLE 1 - SERVICES OF ENGINEER ........................................................................................... ..............................3
1.01 Scope ................................................................................................................................... ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES .......... .......................................................................... ..............................3
2.01 General ................................................................................................................................. ..............................3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................... :................................................................................ 3
3.01 General ................................................................................................................................. ..............................3
3.02 Suspension ........................................................................................................................... ............................... 3
ARTICLE 4 - PAYMENTS TO ENGINEER ........................................................................................ ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............... ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................. ............................... 3
ARTICLE5 - OPINIONS OF COST ...................................................................................................... ..............................4
5.01 Opinions of Probable Construction Cost ............................................................................ ..............................4
5.02 Designing to Construction Cost Limit ................................................................................ ..............................4
5.03 Opinions of Total Project Costs .......................................................................................... ..............................4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................... ..............................4
6.01 Standards of Performance .................................................................................................... ..............................4
6.02 Authorized Project Representatives ...................................................•................................. ..............................5
6.03 Design without Construction Phase Services ..................................................................... ............................... 5
6.04 Use of Documents ............................................................................................................... ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ......................................................................................................................... ............................... 6
6.07 Con &olling Law... .... r ......................................................................................................... ............................... 7
6.08 Successors, Assigns, and Beneficiaries .............................................................................. ............................... 7
6.09 Dispute Resolution ...................:.......................................................................................... ..............................7
6.10 Hazardous Environmental Condition ................................................................................. ............................... 7
6.11 Allocation of Risks .............................................................................................................. ............................... 8
6.12 Notices ................................................................................................................................. ............................... 8
6.13 Survival ................................................................................................................................ ..............................8
6.14 Severability ......................................................................................................................... ............................... 8
6.15 Waiver .................................................................................................................................. ..............................8
6.16 Headings .............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS ............................................................................................................... ............................... 8
7.01 Defined Terms .................................................................................................................... ............................... 8
ARTICLE 8 - EXIIIBITS AND SPECIAL PROVISIONS ................................................................... .............................11
8.01 Exhibits Included ................................................................................................................ .............................11
8.02 Total Agreement ................................................................................................................. .............................11
Standard Form of Agreement
Between Owner and Engineer for Professional Services
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ARTICLE 1 - SERVICES OYENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. If authorized by OWNER, ENGINEER shall furnish
Resident Project Representative(s) with duties,
responsibilities and limitations of authority as set forth in
Exhibit D (Not Used).
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. (Modified) ENGINEER's services and compensation
under this Agreement have been agreed to for the design of
the Project . ENGINEER's obligation to render services
hereunder will be for whatever period necessary for the final
completion of said services.
B. (Deleted).
C. (Modified) 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 OWNER delays ENGINEER's
services, ENGINEER may, after giving seven days written
notice to OWNER, suspend services under this Agreement. If
during such seven -day period, OWNER gives written
authorization to proceed or ENGINEER'S services are no
longer delayed by OWNER, ENGINEER may not suspend
services under this Agreement.
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, ENGINEER shall
be entitled to equitable adjustment of rates and amounts of
compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
connection with, among other things, such delay or suspension
and reactivation and the fact that the time for performance
under this Agreement has been revised.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing practices
and will be submitted to OWNER by ENGINEER, unless
otherwise agreed. ENGINEER shall supply detailed back -up
information along with each invoice in order for the OWNER
to effectively evaluate the fees and charges. 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 of the invoice and
the necessary backup information. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and
backup documentation 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
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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 paragraph 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.
In the event of any termination under section 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. (Deleted)
E. (Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees,- or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
® professional generally familiar with the industry. However,
since ENGINEER has no control over the cost of labor,
materials, equipment, or services famished by others, or over
the r 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. (Exhibit F is
not used).
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the
accuracy of opinions of Total Project Costs.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.011 Standards of Performance
A. (Modified) 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.
B. (Modified) 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 -fu mished information upon which ENGINEER is
authorized to rely as provided in Section 6.0I.E.
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.
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D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER - mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of ENGINEER-
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that ENGINEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the 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 ENGWEER's having to certify, guarantee or warrant
the existence of conditions whose existence ENGINEER
cannot ascertain; provided, that ENGINEER has exercised
due diligence and was not otherwise required to certify,
guarantee or warrant the existence of such conditions.
I. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility for
the means, methods, techniques, sequences, or procedures of
construction selected by Contractor, for safety precautions and
programs incident to the Contractor's work in progress, nor
for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to finnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor(s), subcontractor or
supplier, or of any of the Contractor's agents or employees or
any other persons (except ENGINEER'S own employees and
its consultants for which it is legally liable) at the Site or
otherwise famishing 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 form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
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. Should OWNER provide Construction Phase
services with either OWNER's representatives or a third party,
ENGINEER's Basic Services under this Agreement will be
considered to be completed upon completion of the Final
Design Phase or Bidding or Negotiating Phase as outlined in
Exhibit A.
B. It is understood and agreed that if ENGINEER's
Basic Services under this Agreement do not include Project
observation, or review of the Contractor's performance, or any
other Construction Phase services, and that such services will
be provided by OWNER, then OWNER assumes all
responsibility for interpretation of the Contract Documents
and for construction observation or review and waives any
claims against the ENGINEER that may be in any way
connected thereto.
6.04 Use of Documents
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Between Owner and Engineer for Professional Services
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C
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 which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the ENGINEER,
its officers, and employees and sub - consultants, as well as
their successors and assigns.
B. (Modified) Copies of OWNER - famished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies .of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files' will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within- 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period. 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,
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Between Owner and Engineer for Professional Services
Page 6 of 12
a. (Modified) By either party upon 30 days
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating party; or
b. By ENGINEER upon seven days written
notice if ENGINEER is being requested by OWNER
to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice, to
correct its failure to perform and proceeds diligently
to cure such failure within no more than 30 days of
receipt thereof; provided, however, that if and to the
extent such substantial failure cannot be reasonably
cured within such 30 day period, and if such party
has diligently attempted to cure the same and
thereafter continues diligently to cure the same then
the cure period provided for herein shall extend up
to, but in no case more than 60 days after the date of
receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of-the
state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.13 the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due) in
this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or transfer
is mandated or restricted by law. Unless specifically stated to
the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by OWNER
or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," `operator," "generator," or "transporter" of
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Between Owner and Engineer for Professional Services
Page 7 of 12
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.
9,
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) 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. Additionally, notices may be
given via facsimile or by electronic mail if such notice is also
given personally, or by registered or certified mail or by a
commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and 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.
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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
i
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. (Modified) Contract Documents -- Documents
that establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor and all
documents referenced therein, 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, insurance documents 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
Final 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 Final
Completion during which Contractor must correct, at no
cost to OWNER, any Defective Work, normally one year
after the date of Final Completion or such longer period
of time as may be prescribed by haws 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 famished in appropriate phases by ENGINEER to
OWNER pursuant to this Agreement.
20. Drawings - -That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not
Drawings as so defined.
21. Effective Date of the Construction Agreement —
The date indicated in the Construction Agreement on
which it becomes effective, but if no such date is
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
22. Effective Date of the Agreement —The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants— Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
•
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. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
famished by Contractor with respect to the Project.
27. 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.
28. 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.
29. 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.
30. PCB's — Polychlorinated biphenyls.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
37. 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-
38. Site — Lands or areas indicated in the Contract
Documents as being Punished 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.
39. 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.
40. 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
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.
41. Supplementary Conditions —That part of the Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) 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, compensation for
damages to properties, OWNER's costs for legal, accounting,
insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project, and
the cost of other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement.
43. 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 Punishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44, 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.
45. Written Amendment —A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - engineering or non - technical
rather than strictly construction - related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
nine (9) 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 two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, "Notice of Acceptability of Work,"
consisting of two (2) pages.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
I. Exhibit I, "Allocation of Risks," is not used.
J. Exhibit ], "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 1 to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11' of 12
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
Gary Jackson
Lo
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: City Engineer
Phone Number: (281) 420 -6549
Facsimile Number: (281) 420 -6586
E -Mail Address: wrpedersen @baytown.org
ENGINEER:
By: John K. Davis, P.E.
Title President
Date Signed
Address for giving notices:
Langford Engineering, Inc.
1080 W. Sam Houston Parkway N. Suite 200
Houston, Texas 77043 -5014
Designated Representative (paragraph 6.02.A):
Timothy B. Hardin, P.E.
Title: Vice President
Phone Number: 713 461 -3530
Facsimile Number:_ (713) 932 -7595
E -Mail Address:_ timh(@Iangford-enizineering.net
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXEMIT A, consisting of 9 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER's Services
Article I of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART 1 — BASIC SERVICES (Modified)
A1.01 Preliminary Design Phase
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining -such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards and/or commissions to
receive input into OWNER'S requirements for the Project and evaluation potential solutions available
to OWNER.
6. (Modified) Prepare a preliminary engineering report (the "Report") which will, as appropriate, contain
schematic layouts, sketches, schedule of events, and conceptual design criteria with appropriate
exhibits to indicate the agreed -to requirements, considerations involved, and those alternate solutions
available to OWNER which ENGINEER recommends. This Report will be accompanied by
ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the
Project with each component separately itemized, including the following, which will be separately
itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated
total costs of design, professional, and related services provided by ENGINEER and, on the basis of
information furnished by OWNER, allowances for other items and services included within the
definition of Total Project Costs.
7. Furnish three (3) review copies of the Report to OWNER within ninety (90) days of authorization to
begin services and review it with OWNER.
8. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Report to the OWNER within twenty (20) days after completion of
reviewing it with OWNER.
Page 1 of 9
(Exhibit A - ENGINEER's Services)
0
B. (Modified) 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 and accepted by OWNER.
A1.02 Final Design Phase
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable
Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER - directed
modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon
written authorization from OWNER, ENGINEER shall:
1. (Modified) 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 conformance with the 16- division format of the
Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER.
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for
permits from or approvals of governmental authorities having jurisdiction to review or approve the final
design of the Project and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costs known to ENGINEER, itemized as provided in paragraph A1.0l.A.5.
4. Perform or provide the following additional final Design Phase tasks or deliverables: N/A
5. Prepare and famish 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 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within ninety (180) days after authorization to proceed with this phase.
7. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation,
including plans and specifications, were originally prepared to reflect these items, as reasonably requested
by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents.
B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more
than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or
more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to
commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services
during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to
sequence and coordinate properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGINEER's
compensation has been established under this Agreement is 3
D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date when
the submittals required by paragraph A 1.03.A.6 have been delivered to and accepted by OWNER.
Page 2 of 9
(Exhibit A - ENGINEER's Services)
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed,
ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where
applicable, provide 15 sets of plans and specifications, and maintain a record of prospective bidders to
whom Bidding Documents have been issued.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables:
Receive, process, review and, as applicable, recommend any pre - qualification of materials or
equipment in accordance with the requirements of the bidding documents.
5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts
for the Work.
6. (Added) Receive and process Contractor deposits or charges for the Bidding Documents.
7. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall:
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. With the exception of legal
instructions or interpretations, 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. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01.0, if any.
Page 3 of 9
(Exhibit A - ENGINEER's Services)
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,
appropriate to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems
necessary, in order to observe as an experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's work in progress
beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the
Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar
methods of general observation of the Work based on ENGINEER's exercise of professional
judgment as assisted by the Resident Project Representative, if any. Based on information
obtained during such visits and such observations, ENGINEER will determine if Contractor's
work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep
OWNER informed of the progress of the Work.
(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 cant' 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 substantially conform to the Contract Documents and that the integrity of the design concept
of the completed Project as a functioning whole as indicated in the Contract Documents has been
implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a
result of such observations of Contractor's work in progress, supervise, direct, or have control
over Contractor's work, nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of construction selected by Contractor, for
safety precautions and programs incident to Contractor's work, or for any failure of Contractor to
comply with Laws and Regulations applicable to Contractor's furnishing and performing the
Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor
assumes responsibility for any Contractor's failure to furnish and perform its work in accordance
with the Contract Documents.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially 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.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
dorequired.
Page 4 of 9
(Exhibit A - ENGINEER's Services)
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the design
concept of the completed Project as a functioning whole as indicated in the Contract Documents.
Such reviews and approvals or other action will not extend to means, methods, techniques, sequences
or procedures of construction or to safety precautions -and programs incident thereto. ENGINEER
has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to
ENGINEER.
10. Substitutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality
to OWNER or Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWNER, based on such observations and review, that, to the best of ENGINEER's
knowledge, information and belief, Contractor's work has progressed to the point indicated, the
quality of such work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in the recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's
responsibility to observe Contractor's work In the case of unit price work, if the OWNER
furnishes an on -site representative, ENGINEER may use OWNER'S Representative's daily
reports for unit quantity determinations and 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.5.a are expressly subject to the limitations set forth
in paragraph A1.05.A.5.b and other express or general limitations in this Agreement and
elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as it
is performed and furnished have been exhaustive, extended to every aspect of Contractor's work
in progress, or involved detailed inspections of the Work beyond the responsibilities specifically
assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's
review of Contractor's work for the purposes of recommending payments nor ENGINEER's
recommendation of any payment including final payment will impose on ENGINEER
Page 5 of 9
(Exhibit A - ENGINEER's Services)
responsibility to supervise, direct, or control Contractor's work in progress or for the means,
methods, techniques, sequences, or procedures of construction or safety precautions or programs
® incident thereto, or Contractor's compliance with Laws and Regulations applicable to
Contractor's furnishing and performing the Work. It will also not impose responsibility on
ENGINEER to make any examination to ascertain how or for what purposes Contractor has used
the moneys paid on account of the Contract Price, or to determine that title to any portion of the
work in progress` materials, or equipment has passed to OWNER free and clear of any liens,
claims, security interests, or encumbrances, or that there may not be other matters at issue
between OWNER and Contractor that might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this
information as provided by Contractor, and deliver three (3) copies of the same to OWNER.
b. (Modified) 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 A1.04.A.9, and the annotated record
documents which are to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such ENGINEER's review will be limited as provided in
paragraph A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents
from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings on mylar showing appropriate
record information based on Project annotated record documents received from Contractor.
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:
N/A
17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to
the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due
diligence, 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 Projects or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.03.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
Page 6 of 9
(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 its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
A1.05 Post - Construction Phase
A. Upon written authorization from OWNER, ENGINEER, during the Post - Construction Phase, shall:
1. Provide assistance in connection with the testing and adjusting of Project equipment or systems.
2. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems.
3. Assist OWNER in developing procedures for control of the operation and maintenance of, and record
keeping for Project equipment and systems.
4. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist OWNER in
consultations and discussions with Contractor concerning correction of any such defects, and make
recommendations as to replacement or correction of Defective Work, if present.
5. Perform or provide the following additional Post - Construction Phase tasks or deliverables: NIA
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.
(Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements; review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER.
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.
Page 7 of 9
(Exhibit A - ENGINEER's Services)
3. (Modified) 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, OANER's schedule, or character of construction; 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.
4. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A 1.0I .A.4.
5. Services required as a result of OWNER's providing incomplete or incorrect Project information with
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
paragraph 6.01.E of the Agreement.
6. Providing renderings or models for OWNER's use.
7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating
processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity
surveys of materials, equipment, and labor; and audits or inventories required in connection with
construction performed by OWNER.
8. Furnishing services of ENGINEER's Consultants for other than Basic Services.
9. Services attributable to more prime construction contracts than specified in paragraph A1.03.C.
10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's
office.
11. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value engineering, and 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. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
13. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
14. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement.
16. Property descriptions.
17. (Modified) Property, easement, right -of -way, and other special surveys or data, including
establishing relevant reference points.
18. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant
environmental or cultural studies as to the Project, the Site, and adjacent areas.
Page 8 of 9
(Exhibit A - ENGINEER's Services)
19. (Added) Additional 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, or (4) acceleration of the progress schedule involving services
beyond normal working hours,.
A2.02 Required Additional Services
A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from
OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing prior
to starting any such Additional Services.
1. (Deleted)
2. (Deleted)
3. (Deleted)
4. (Deleted)
5. (Deleted)
6. (Deleted)
0
Page 9 of 9
(Exhibit A - ENGINEER's Services)
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. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER
will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms,
conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site.
C. (Modified) Following ENGINEER's assessment of initially- available Project information and data and upon
ENGINEER's written request, fiunish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. (Deleted).
2. (Deleted).
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.
;s
F. (Modified) Arrange for 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).
I. (Deleted).
Page 1 of 2 Pages
(Exhibit B - OWNER's Responsibilities)
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
® peer review, value engineering, and constructibility review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. (Modified) 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 the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER.
M. 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. Provide copies of daily observation reports prepared by OWNER's on -site representative to ENGINEER
during construction phase.
Page 2 of 2 Pages
(Exhibit B - OWNER's Responsibilities)
•
This is EXHIBIT 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 5. The portion of the amount billed for
the parties: ENGINEER's services will be based upon total
services actually completed during the billing
ARTICLE 4 -- PAYMENTS TO THE ENGINEER period.
C4.01 For Basic Services Having A Determined
Scope —Cost not to Exceed Method of
Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $193,500.00, which does not include
those Engineer's Consultant's charges as
provided below in this Article 4, Subparagraph
C4.05, to be distributed at the completion of each
of the phase in the following amount:
a. Preliminary Design Phase
$28,950
b. Final Design Phase
$115,800
c. Bidding and Negotiating Phase
$9,650
d. Construction Phase
$ 37,600
e. Post Construction Phase
$1,500
2. (Modified) ENGINEER may with the
consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rendered, but shall not exceed the total Cost not
to exceed amount unless approved in writing by
the OWNER.
3. The Cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05),
if any. Appropriate amounts have been
incorporated in the Cost not to exceed to account
for labor, overhead, profit, and Reimbursable
Expenses.
0 4. Deleted.
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
pursuant to paragraph A2.01 or A2.02 of Exhibit
A of the Agreement, except for services as a
consultant or witness under paragraph
A2.0l.A.13, an amount equal to ENGINEER's
Direct Labor Costs based upon the rate schedule,
which is attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes,
times a Factor of 3.10, plus Reimbursable
Expenses and ENGINEER's Consultant's
charges, if any. Additional Services shall not
exceed $5,000.00 without the prior written
consent of the Owner.
2. (Not Used).
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the
Page I of 2 pages
Sheet C -1 (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
•
•
OWNER of any expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Reimbursable Expenses shall not exceed $8,000.00
without the prior written consent of the Owner.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
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 1.10.
D. (Deleted).
E. (Added) The OWNER must approve all
travel expenses before the same are incurred. If such
approval is not obtained, the OWNER shall not be
liable for such travel expenses.
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 1.10. The consultant
charges shall not exceed the following amounts
specified for each of the following services, unless
approved in writing by the OWNER. The charges
include the factor, and are as follows:
(1) Surveying $21,160
(2) Geotechnical $24,210
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and
wages paid to ENGINEER's employees but does not
include payroll related costs or benefits.
B. (Deleted).
4.07 Factors
A. The Direct Labor Costs Factor includes the
cost of customary and statutory benefits including,
but not limited to, social security contributions,
unemployment, excise and payroll taxes, workers'
compensation, health and retirement benefits,
bonuses, sick leave, vacation, and holiday pay
applicable thereto; 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.
Page 2 of 2 pages
Sheet C -2 (Exhibit C - All Other Services /Charges -- Cost not to Exceed Method of Payment
Principal Engineer
Project Manager/Engineer
Senior CAD Designer
CAD Technician Level II
CAD Technician Level 1
Administrative Assistant
Administrative Clerical
Construction Administrator
Field Representative
Appendix 1 (Exhibit 0
LANGFORD ENGINEERING, INC.
2002 Engineering Services
Direct Labor Cost Rate Sheet
Page 1 of 1 Pages
(Appendix l to Exhibit C)
S43.27/hr
32.50fhr
21.25/hr
17.15 /hr
15.00 /hr
23.00/hr
17.001hr
32.50/hr
17.00/hr
Appendix 2 (Exhibit Q
® Schedule of Reimbursement Billing Charges
•
In -house Reproduction Costs:
Xerox: $0.03 per page (8%2 x 11, 8%2 x 14, and 11 x 17)
Xerox: Copies larger than 11 x 17 = Cost plus 10%
Bluelines: $0.15 per square foot
Sepias: $0.30 per square foot
Mylars: $1.10 per square foot
Mileage: MS Rate
Deliveries, long distance telephone charges, postage, etc.: Cost plus 10%
Page 1 of 1 Pages
(Appendix 1 to Exhibit C)
This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and
ENGINEER for Professional Services dated
Initial:
OWNER
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
OWNER
CONTRACTOR
ENGINEER
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
go
Title:
Dated:
•
Page I of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
(Reverse side of Notice)
9 CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
:J
The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at.the same time and.in the same locality...
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been
employed by OWNER to perform or furnish during construction of the Project (including observation of the
CONTRACTOR'S work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S performance under the Construction
Contract nor an assumption of responsibility for any failure of the Contractor to furnish and perform the work
therunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such
failure and failed to ensure that the same were corrected and brought into compliance with the Contract
Documents.
Page 2 of 2 Pages
(]Exhibit E - Notice of Acceptability of Work)
This is EXIMIT 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: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $500,000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
C. Coverage will be in force for three (3) years after project is completed.
Page 1 of 2 Pages
(Exhibit G - Insurance)
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 fiuuished 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.
Page 2 of 2 Pages
(Exhibit G - Insurance)
r�
L_J
•
This is EXIMIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREAFTER, WHETHER SINGULAR OR
PLURAL, COLLECTIVELY REFERRED TO AS "OWNER ")
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF
EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR
DEATH OF ENGINEER OR ENGINEER'S EMPLOYEES
(HEREINAFTER, WHETHER SINGULAR OR PLURAL,
COLLECTIVELY REFERRED TO AS "ENGINEER "). IN THE
EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER,
SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST
EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT
ALLOWED REGARDLESS OF WHETHER THE CLAIMS;
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR
LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE
NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART
FROM THE NEGLIGENCE OF ENGINEER. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
ENGINEER AND OWNER., THAT THE INDEMNITY PROVIDED
FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO
INDEMNIFY AND PROTECT OWNER FROM THE
CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO
THE EXTENT ALLOWED BY LAW, WHERE THAT
NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE
RESULTING INJURY OR DEATH OF ENGINEER AND /OR (II)
ENGINEER'S JOINT AND /OR SOLE NEGLIGENCE. SUCH
INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY
ARISING FROM THE PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER
THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE
Page 1 of 2 Pages
(Exhibit K - Indemnification)
s
•
OF OWNER. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE OWNER 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
OWNER 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)