Ordinance No. 9,859ORDINANCE NO'. 9859
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT
WITH PATE ENGINEERS, INC., FOR THE PREPARATION OF THE
PRELIMINARY ENGINEERING REPORT FOR NORTHEAST WASTEWATER
TREATMENT PLANT OFFSITE COLLECTION SYSTEM; AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN OF AN AMOUNT NOT TO EXCEED
FOUR HUNDRED FOUR THOUSAND SEVEN HUNDRED FORTY -FIVE AND
NO /100 DOLLARS ($404,745.00); MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to a professional services agreement with
PATE Engineers, Inc., for the preparation of the preliminary engineering report for the Northeast
Wastewater Treatment Plant Offsite Collection System. A copy of said Agreement is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: - That the City Council of the City of Baytown authorizes payment of additional
funds to PATE Engineers, Inc., in an amount not to exceed FOUR HUNDRED FOUR THOUSAND
SEVEN HUNDRED FORTY -FIVE AND NO /100 DOLLARS ($404,745.00) for engineering services in
accordance with the contract.
Section 3: That in addition to the amount specified in Section 2 hereof, the City Manager is
hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE
THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in
Section 2 hereof may not be increased by more than twenty-five percent (25 %).
Section 4: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 26th day of August, 2004.
C.�
CALVIN MUNDINGER, Mayor
ATTEST:
G R W. SMITH, City Clerk
APPROVED AS TO FORM:
• IG ACID RAMIREZ, S ity Attorney
\\Bdc2\litigation \Karen\Files \City Council) rdinances \PATEEnginecr NortheastoffsiteCollectionSystem .doc
STANDARD FORM OF AGREEMENT
• BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the __ day of August, 2004 ( "Effective Date ").
Between
City of Baytown ( "OWNER ")
and
PATE Engineers, Inc. ( "ENGINEER ")
OWNER intends to contract for engineering services in connection v ith the design of the Northeast Wastewater
Treatment Plant offsite sewer lines along Sjolander, Needlepoint, ;archer, Lift Station No. 30 to the plant, and Lift
Station No. 75 to the plant in the area ofBagtown, Texas ( "Project ")
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
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EXHIBIT A
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TABLE OF CONTENTS Page
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ARTICLEI - SERVICES OF ENGINEER ......................................................................................... ............................... 3
1.01 Scope .................................................................................................................................. ............................... 3
ARTICLE2 - OWNER'S RESPONSIBILITIES ................................................... ............................... ......................1111..... 3
2.01 General .............................................. .................................. ............................................................................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ................................................................................................................................ ......:........................ 3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE4 - PAYMENTS TO ENGINEER ....................................................................................... ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ............................... 3
4.02 Other Provisions Concerning Payments .........................................................................•-•.. ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost ........................................................................... ............................... 4
5.02 Designing to Construction Cost Limit ..............................
................................................. ...............................
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE6 - GENERAL CONSIDERAT IONS .................................................................................. ................:.............. 4
6.01 Standards of Performance .............. ...............................:.................................................... ............................... 4
6.02 Authorized Project Representatives.; ....... ...................................................................... . 1..1.11............ 5
6.03 Design without Construction Phase Services ..................................................................... ............................... 5
6.04 Use of Documents ..........................................................................................................:... ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law .................................................................................................................. ...... .......................... 7
6.08 Successors, Assigns, and Beneficiaries .............................. : ............... : ........ ........ ............. ................................. 7
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................... ............................... .........................1111.7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severability ......................................................................................................................... ............... .I............... 8
6.15 Waiver ................................................................................................................................ ............................... 8
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS ...........................................:................................................................... ............................... 8
7.01 Defined Terms .............. ........... ......................................................................................................................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... 11
8.01 Exhibits Included .............................................................................................................. ............................... 11
8.02 Total Agreement ............................................................................................................... ............................... 11
C.
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ARTICLE l - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A. ' -
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. (Deleted).
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 preparation
of a preliminary engineering report 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. (Deleted)
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 famished under Exhibit A,
Part 1, as set forth in Exhibit C.
. I 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 therefore, the amounts due
ENGINEER will be increased at the rate of 1.0% per month
(or the maximum rate of interest permitted by law, if less)
after the 30th day. ENGINEER may after giving seven days
written notice to OWNER suspend services under this
Agreement until ENGINEER has been paid in full all amounts
due for services, expenses, and other related charges.
However, it is expressly understood and agreed that
ENGINEER will not charge any interest or penalty as set forth
herein on any portion of an invoice that is disputed and
withheld in accordance with paragraph 3.02 and that
ENGINEER will not suspend services under the agreement on
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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 furnished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER cannot
and does not guarantee that proposals, bids, or actual
Construction Cost will not vary from' opinions of probable
Construction Cost prepared by ENGINEER. If OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. If a Construction Cost limit is established between
OWNER and ENGINEER, such Construction Cost limit and a
statement of ENGINEER's rights and responsibilities with
respect thereto will be specifically set forth in Exhibit F,
"Construction Cost Limit," to this Agreement. (Exhibit F is
not used).
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 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 - furnished information upon which ENGINEER is
authorized to rely as provided in Section 6.01.13.
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. ENGINEER
may employ such ENGINEER's Consultants as ENGINEER
deems necessary to assist in the performance or furnishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER - mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
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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`otheiivise 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. (Deleted).
H. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify, guarantee or warrant
the existence of conditions whose existence ENGINEER
cannot ascertain; provided, that ENGINEER has exercised
due diligence and was not otherwise required to certify,
guarantee or warrant the existence of such conditions.
I. (Deleted).
J. (Deleted)
K. (Deleted).
L. (Deleted).
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
(Deleted).
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any ternunation 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 - furnished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by .
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to .
ENGIINTEER 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
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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
temninated:
1. For cause,
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
convect 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
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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
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Site in connection with ENGINEER's activities under this
Agreement.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (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:
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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. Deleted
2. Additional Services- -The services to be
performed for or famished 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 fiunished 'to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7, Deleted
8. Deleted
9. Deleted
10. Deleted
11. Deleted
12. Deleted
13. Deleted
14, Deleted
15. Deleted
16. Deleted
17. Deleted
18. Deleted
19. Documents - -Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or firrnished 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. Deleted
22. Effective Date of the Agreement - -The date
indicated in this Agreement on which it becomes
effective, but if no -such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants- -Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
24. Deleted
25. Deleted
26. Deleted
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.
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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. Deleted
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. Deleted
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. Deleted
38. Site- -Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which
the Work is to be performed, rights -of -way and easements
for access thereto, and such other lands furnished by
OWNER which are designated for use of Contractor.
39. Deleted
40.. Deleted
41. Deleted
42. Deleted
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 furnishing, installing, and incorporating all materials
and all equipment into such construction, all as required
by the Contract Documents.
44. Deleted
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
constructi on- related aspects of the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
three (3) 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," is not
used.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
I. Exhibit I, "Allocation of Risks," is not used.
Standard Form of Agreement .
Between Owner and Engineer for Professional Services
Page 9 of 11
•
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to I
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 11
0
r�
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
Signature: -
Printed Name: Gary Jackson
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytowm, Texas 77522
Designated Representative (paragraph 6.02.A):
Name: W. R. (Bill) Pedersen, P.E.
Title: Director of Engineering
Phone Number: (281) 420 -6549
Facsimile Number: (281) 420 -6586
E -Mail Address: wrpedersen @baytown.org
ENGINEER
Signature:—
Printed Nair,
Title: Vice President
Date Signed: $14Ol lo' J -
Address for giving notices:
13333 Northwest Freeway, Suite 300
Houston, Texas 77040
Designated Representative (paragraph 6.02.A):
Name: David A. Hamilton, P.E.
Title: Vice President
Phone Number: (713) 462 -3178
Facsimile Number: (713) 462 -1631
E -Mail Address: dhamilton @pateeng.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I 1 of 11
•
This is EXHIBIT A, consisting of 3 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART 1 -- BASIC SERVICES (Modified)
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, as indicated in Appendix 1 of this Exhibit A.
6. (Modified) Prepare a Preliminary Engineering Report (PER) as indicated in Appendix 1 of this Exhibit
A, 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.
Furnish five (5) review copies of the Draft PER to OWNER within one hundred sixty-five (165)
calendar days of authorization to begin services and review it with OWNER.
S. Revise the Draft PER in response to OWNER's and other parties' comments, as appropriate, and
furnish five (5) final copies of the revised PER to the OWNER within fifteen (15) calendar. days after
completion of reviewing it with OWNER.
Page I of 3 Pages
(Exhibit A -- ENGINEER's Services)
B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the revised PER has been delivered to and accepted by OWNER.
• A1.02 Final Design Phase (Deleted in its entirety)
A1.03 Bidding or Negotiating Phase (Deleted in its entirety)
A1.04 Construction Phase (Deleted in its entirety)
A 1.05 Post - Construction Phase (Deleted in its entirety)
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the
types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement.
1. (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.
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, OWNER'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 A1.01.AA,
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 Section
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.
Page 2 of 3 Pages
(Exhibit A -- ENGINEER's Services)
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 6.0 LG 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.
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. Topographic Survey.
2. Geotechnical Services.
3. Texas Water Development Board (TWDB) Application and Planning Phase.
a. Environmental Assessment (EA) and Nationwide Permit 12
b. Engineering Support for Item 3.a..
c. Financial Advisor Support .
d. Preliminary Engineering Feasibility Report (PEFR) .
4. (Deleted)
S. (Deleted)
0 6. (Deleted)
Page 3 of 3 Pages
(Exhibit A -- ENGINEER's Services)
APPENDIX I TO EXHIBIT A'- SCOPE OF WORK
® Background:
This project will provide for a wastewater conveyance system to divert flow from the northeast sector of the East
District to the proposed North East Wastewater Treatment Plant (NEWWTP). The proposed system is described as
follows:
1. - Needlepoint: Sjolander to the NEWWTP— Approximately 4,000 LF of 42 -inch sewer. -
2. Sjolander: Archer to Needlepoint and I -10 to Needlepoint— Approximately 6,500 LF of 30 -inch
sewer.
3. Sjolander: South of E. Lynchburg -- Cedar Bayou to Archer — Approximately 6,000 LF of 15 -inch
sewer.
4. Archer: N. Main to Sjolander — Approximately 9,500 LF of 18 -inch sewer.
5. Lift Station No.75 Force Main and Upgrade: Approximately 12,000 LF of 16 -inch force main
from LS No. 75, along SH 146 and the Union Pacific Railroad right -of -way to the NEWWTP. The
Lift Station will also be upgraded and will consist primarily of replacing pump motors to
accommodate the increased head to be experienced with the re- direction of the force main. The
existing pumps are capable of meeting the demand parameters. The electrical system was
originally designed to accommodate the motor size upgrade.
6. Lift Station No. 30 Force Main: Approximately 5,000 LF of 16 -inch force main and gravity
line from LS No. 30, located on the west side of the Pinehurst Subdivision to the NEWWTP. The
proposed routing is west under Cedar Bayou to the CenterPoint Energy/UPRR corridors, then
northeast to the NEWWTP site.
Scope of Work:
Basic Services:
Pate Engineers, Inc. (PATE) will prepare a Preliminary Engineering Report (PER) that will include the following:
1. Review of all available plans for existing utilities and adjacent facilities.
2. Field verification of existing surface structures and utilities.
3. Verify sanitary sewer trunk line, force main and lift station sizing for the proposed facilities using
City provided reports and data.
4. Alignment selection for the proposed Lift Station No. 30 (Pinehurst) force main.
5. Alignment verification and coordination of a licensing agreement with the UPRR for the Lift
Station No. 75 (SH 146) force main.
6. Confirm the extent and alignment of a' 12 -inch waterline from the west property line of City
property on Needlepoint to the NEWWTP site.
7. Preparation of proposed alignment schematics for the various sewer lines prepared at 1" = 40'
scale.
8. Preparation of preliminary plan and profile sheets for proposed sewer line crossings at critical
locations such as canals, railroads, pipelines, etc.
9. Coordination with Harris County in conjunction with the proposed routing in county rights -of -way.
10. Coordination with various agencies at crossings such as the Harris County Flood Control District.
11. Identification of required easements at locations where the sewer line cannot be constructed within
existing right -of -way.
12. Obtain and coordinate geotechnical investigation to be performed by our sub - consultant along the
proposed sewer line routes in accordance with proposal from Aviles Engineering Corp. dated June
9, 2004 consisting of six pages which is incorporated herein by this reference for all intents and
purposes.
13. Obtain and coordinate an Environmental Assessment Document (EA) per Texas Water
Development Board (TWDB) guidelines to be performed by our sub - consultant along the
proposed off -site sanitary sewer line routes for the NEWWTP in accordance with proposal from
Page 1 of 2 Pages
(APPENDIX 1 to EXHIBIT A - Scope of Work)
Berg - Oliver Associates, Inc. dated August 2, 2004 (revised) consisting of seven pages which is
incorporated herein by this reference for all intents and purposes.
® 14. Coordinate with the NEWWTP design engineer regarding connection of the.off -site trunk sewer
______and force-mains-to the on -site WWTP lift station.
Special Services:
•
1. Perform a topographic survey with cross sections at 100 foot intervals and at critical crossings. The
survey limits shall extend to the evident right -of -way along the proposed route. In addition, the
survey scope work includes:
a. Verify evident property corners and road right -of -way monumentation.
b. Tie -in soil boring locations.
C. The survey will terminate at the City property located on Needlepoint. From Needlepoint
to the NEWWTP site, we will coordinate with the plant design engineer to utilize their
survey data to complete the trunk line design to the NEWWTP facility.
2. Provide geotechnical services and soil borings at 1,000 foot intervals, canal, bayou crossings and
other critical locations such as deep sections along the proposed alignment.
3. Perform services in support of the TWDB Application and Planning Phases:
a. Environmental Assessment Document (EA)
b. USACE Nationwide Permit 12
C. Financial Advisor Support
4. Reimbursable expenses for report reproduction and special exhibits required for presentations.
Property abstracting, easement exhibits or other easement related documents are not included in the scope of
services.
Schedule:
The PER and related work scope will be completed within one hundred eighty (180) calendar day_ s after receipt of
notice to proceed.
The City will provide the following:
Any pertinent information in connection with the project.
All required standard detail sheets.
Available As- built/Record Drawings for existing water facilities in the project area.
Exclusions to the Work Scope /Additional Services:
Exclusions /additional services require advance written approval from the City and would include but not be limited
to the following:
Work outside of the scope of work as defined above where additional engineering effort will be
required.
Design and construction phase services.
Survey and acquisition documents for all required easements.
Page 2 of 2 Pages
(APPENDIX l to EXHIBIT A - Scope of Work)
® This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Seances 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, furnish 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).
I (Deleted).
4. (Deleted).
S. (Deleted).
6. (Deleted).
D. (Deleted):
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors
or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions
pertaining thereto.
• H. (Deleted).
Page 1 of 2 Pages
(Exhibit B – OWNER's Responsibilities)
1. (Deleted).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructibility review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
•
Page 2 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
r,
LJ
•
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 the parties: C4.03 For Additional Services
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
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 $93,550 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 $93,550
2. (Delete).
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.
4. Deleted.
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. (Not Used).
A. OWNER shall pay ENGINEER for Additional
Services as follows:
1. General. For services of ENGINEER's
employees engaged directly on the Project pursuant
to paragraph A2.01 or A2.02 of Exhibit A of the
Agreement, except for services as' a consultant or
witness under paragraph A2.0I.A.13, , an amount
equal to ENGINEER's Salary 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 2_3 plus Reimbursable
Expenses. Survey Services will be based on the rate
schedule in Appendix 1 of Exhibit C and will be
billed as flat rates. Additional Services shall not,
exceed the following without the prior written
consent of the Owner:
a. Topographic Survey - $133,600
b. TWDB Application and Planning Phase
1. Engr. Support for Item C4.05A(2) $13,140
2. Financial Advisor Support $ 4,250
3. PEFR $ 3,815
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
OWNER of any expense that exceeds $1,000 for which
the ENGINEER seeks reimbursement. Reimbursable
Expenses shall not exceed $6,000 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,
Page 1 of 2 Pages
(Exhibit C - Basic Services With Deterntined Scope -- Cost not to exceed Method)
•
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 ofQ.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 shall not exceed the following without prior written
consent of the OWNER.
(1) Geotechnical $90,150
(2) TWDB Application and Planning
Phase
a. EA & Nationwide Permit 12 $60,240
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 C4.01 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
(Exhibit C - All Other Services /Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C - HOURLY RATES .
Hourly Rates for Engineering Staff:
Services performed on an hourly basis would be based on the actual hourly salary cost rates for members of the staff.
The following is a list of typical hourly salary cost rates for various staff categories.
Staff Category Salary Cost Multiplier Typical Rate
Principal
$80.00
per hour x 2.3
$184.00
Project Manager /Senior Project Engineer
$65.00
per hour x 2.3
$150.00
Design Manager
$60.00
per hour x 2.3
$138.00
Construction Manager
$55.00
per hour x 2.3
$127.00
Project Engineer
$45.00
per hour x 2.3
$104.00
Design Engineer
$43.00
per hour x 2.3
$ 99.00
Senior Designer
$49.00
per hour x 2.3
$113.00
CARD Technician/Draftsman
$33.00
per hour x 2.3
$ 76.00
Construction Observer
$30.00
per hour x 2.3
$ 69.00
Clerical
$25.00
per hour x 2.3
$ 58.00
Hourly Billing Rates for Survey Staff:
Staff Category Billing Rate
Survey Manager
$110.00
Registered Professional Land Surveyor
$ 85.00
Survey Coordinator
$ 75.00
Survey Technician
$ 60.00
Clerical
$ 45.00
Conventional Survey Crew
_ $120.00
Robotic Station Survey Crew
$140.00
GPS (Global Positioning System) Crew
$140.00
Page 1 of 1 Pages
(Appendix I of Exhibit C - Hourly Rates)
® APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS
Reproduction and Deliveries: Cost plus 10%
Mileage: IRS Rate
•
Page l of l Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
•
This is EXHIBTI' 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.
Page 1 of 2 Pages
(Exhibit G - Insurance)
c. Coverage will be in force for three (3) years after project is completed.
® Key Main Life Insurance (Deleted)
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 the commercial general
liability and business automobile policies.
e. Upon request of and without cost to City of Bayto xm, certified copies of all insurance policies and/or certificates
of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence
of insurance coverage shall be provided to City of Baytown's representative prior to execution of this
agreement.
f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to City of Baytown's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
Ll
•
This is EXHIBIT K, consisting of 2 pages, referred to in.and part of
the Agreement between OWNER and ENfGMEER for
Professional Services dated
mm Initial:
OWNER
ENGINEER
Indemnification
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
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.
By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER
hereby expressly revokes any consent to litigation that it may have granted by the terms
of this Contract or any other contract or agreement, any charter, or applicable state law.
Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity.
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 Exhibit K shall control and supercede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination 'and /or expiration of this Agreement. .
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