Ordinance No. 9,979ORDINANCE NO. 9979
® 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 FOST, BUCKLEY, SCHUH, & JERNIGAN, INC., TO PERFORM FINAL
DESIGN FOR THE WEST DISTRICT WASTEWATER TREATMENT PLANT
HEADWORKS LIFT STATION REHABILITATION PROJECT; AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED
FORTY -EIGHT THOUSAND FIVE HUNDRED SIXTY -FIVE AND NO /100
DOLLARS ($48,565.00); 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
Post, Buckley, Schuh, & Jernigan, Inc., to perform final design for the West District Wastewater
Treatment Plant Headworks Lift Station Rehabilitation Project. A copy of said agreement is attached
hereto, marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Post,
Buckley, Schuh, & Jernigan, Inc., in an amount not to exceed FORTY -EIGHT THOUSAND FIVE
HUNDRED SIXTY -FIVE AND NO /100 DOLLARS ($48,565.00) for professional engineering services
in accordance with the contract.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY -FIVE THOUSAND AND 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 I P day of January, 2005.
CALVIN MUNDINGER, Ma
ATTEST:
G RY . S lT- R-,_City Clerk
h
APPROVED AS TO FORM:
i
t ACIO RAMIREZ, SR, ity Attorney
RAKaren \Files \City Council \ordina 005\January IAP BS&J Final Design4WestOistrictHeadworks.doc
® STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of
Between
The City of Baytown ( "OWNER ")
and
PBS &J ( "ENGINEER ")
( "Effective Date ").
OWNER intends to remedy recurring pump failures at the main plant lift station caused by pump cavitation, repair
any structural corrosion, improve service access, and accommodate the planned expansion of the West District
Wastewater Treatment Plant.
( "Project ").
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
• Standard Form of Agreement
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LW1T A
® TABLE OF CONTENTS Page
ARTICLEI - SERVICES OF ENGINEER ......................................................................................... ............................... 3
1.01 Scope .................................................................................................................................. ............................... 3
ARTICLE2 - OWNER'S RESPONSIBILITIES ................................................................................. ............................... 3
2.01 General ................................................................................................................................ ..............................3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ............................................................................................................................... ........................:...... 3
3.02 Suspension ...........................................................................................................:.............. ............................... 3
ARTICLE4 - PAYMENTS TO ENGINEER ........ :.............................................................................. ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............. ............................... 3
4.02 Other Provisions Concerning Payments .............:.............................................................. ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost.— I I-- ............................................................................................. 4
5.02 Designing to Construction Cost Limit .............................................................................. ............................... 4
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................. ............................... 4
6.01 Standards of Performance .................................................................................................. ............................... 4
6.02 Authorized Project Representatives.. ......... . ...................... ............................................................................. 5
6.03 Design without Construction Phase Services .................................................................... ............................... 5
6.04 Use of Documents .............................................................................................................. ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law ................................................................................................................. ............................... 7
6.08 Successors, Assigns, and Beneficiaries ............................................................................. ............................... 7
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................ ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 7
6.12 Notices ................................................................................................................................ ............................... 7
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severability ......................................................................................................................... ............................... 8
6.15 Waiver ................................................................................................................................. ..............................8
6.16 Headings .......... .................................. - ........................................................................................ ...................... 8
ARTICLE7 - DEFINITIONS .............................................................................................................. ............................... 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... 1 l
8.01 Exhibits Included. ............................................ ............................................................................................... 11
8.02 Total Agreement............................................................................................................... ............................... 11
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ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. (Deleted).
ARTICLE 2 - ONVNER'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 4.0LA and
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGMER'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
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
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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 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 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 OWNTER
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
OWNTER 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.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.
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
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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. (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. 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 furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGI NEER'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 furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Norm 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
fumished 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
party.
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 tennination 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
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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 inforrnation
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 OW`N`ER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to tong -term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than those specified in Exhibit G. If
so requested by OWNER, with the concurrence of
ENGINEER, and if commercially available, ENGINEER
shall obtain and shall require ENGINEER's Consultants to
obtain such additional insurance coverage, different limits, or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (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
professi onal.
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.
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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
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.
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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 farm 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.
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 OWNTER of
those portions of the entire Project designed or specified
by ENGIINTEER. Construction Cost does not include
costs of services of ENGINEER or other design
professionals and consultants, cost of land, tights -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 tights and obligations of the parties
engaged in construction and include the Construction
Standard f=orm of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
•
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 Laws or Regulations or
by the terms of any applicable special guarantee or
specific provision of the Contract Documents.
18. Defective - -An adjective which, when modifying
the word Work, refers to Work that is unsatisfactory,
faulty, or deficient, in that it does not conform to the
Contract Documents, or does not meet the requirements
of any inspection, reference standard, test, or approval
referred to in the Contract Documents, or has been
damaged prior to ENGINEER's recommendation of final
payment.
19. Documents - -Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or furnished in appropriate phases by ENGINEER to
OWNER pursuant to this Agreement.
20. Drawings - -That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not
Drawings as so defined.
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, ENGMEER's Consultants -- Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
24. Field Order - -A written order issued by
ENGINEER which directs minor changes in the Work
but which does not involve a change in the Contract
Price or the Contract Times.
25. 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 govem the Work to be performed or
furnished 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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
•
•
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 ENGt1T'LLR'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 ENGINTEER
to illustrate some portion of the Work.
38. Site - -hands 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. 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 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 OWINTER pursuant to
Exhibit B of this Agreement.
43. lVork- -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. 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
® 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
seven (7) 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.
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 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 l l 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
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: (28 1) 420 -6549
Facsimile Number: (281) 420 -6586
E -Mail Address: Arpederscn @baytoAn.org
ENGINEER:
t d ame e t J. Slovak P.E.
Title Associate Vice President
Date Signed 1 —1 -3 -os--
Address for giving notices:
1850 S. DAIRY ASHFORD, SUITE 300
HOUSTON, TEXAS 77077
Designated Representative (paragraph 6.02.A):
Alan R. Black, P.E.
Title: Senior Staff Engineer
Phone Number: (281) 493 -5100
Facsimile Number: (281) 493 -4598
E -Mail Address: arblack0pbsi.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
•
0
This is EXHIBIT A, consisting of 7 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEE
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)
ALO1 Preliminary Design Phase
Not Included
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 Al.O1.A.5.
4. Perform or provide the following additional final Design Phase tasks or deliverables:
Prepare final plans and specifications suitable for construction for improvements to the West District
WWTP Plant Lift Station . Improvements to include the replacement of all six pumps at the lift station,
coating of the wet well interior, replacement of the pump discharge elbow, demolition of the existing
risers, replacement of the risers and new check valves, modifications to the baffle wall, additional vents,
and electrical improvements. The Improvements noted above are described in detail as Option 2 of the
Preliminary Engineering Report submitted to the City of Baytown on November 23, 2004. Estimate of
Construction Costs is $545,000.00.
5. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other
advisors, as appropriate, and assist OWNER in the preparation of other related documents.
6. Submit 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within ninety (90) days after authorization to proceed with this phase.
Page 1 of 7 pages
(Exhibit A — Engineer's Services)
• 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 ENGIIN'EER 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 ENGIIN'EER upon which the ENGINEER's
compensation has been established under this Agreement is
D. (Modified) ENGfNEER'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.
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:
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.
Page 2 of 7 pages
(Exhibit A —Engineer's Services)
• A 1.04 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. 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.
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.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
professional, to provide for OWNER a greater degree of confidence that the completed Work
will 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.
Page 3 of 7 pages
(Exhibit A — Engineer's Services)
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
required.
9. 'Shop Drawings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or- equal." 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 OWA'£R 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
Page 4 of 7 pages
(Exhibit A — Engineer's Services)
• responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's
recommendations of payment will include final determinations of quantities and classifications
of Contractor's work (subject to any subsequent adjustments allowed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph A1.04.A.5.a are
expressly subject to the limitations set forth in paragraph A1.04.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
ENGWEER's recommendation of any payment including final payment will impose on
ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for
the means, methods, techniques, sequences, or procedures of construction or safety precautions
or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable
to Contractor's furnishing and performing the Work. It will also not impose responsibility on
ENGINEER to make any examination to ascertain how or for what purposes Contractor has
used the moneys paid on account of the Contract Price, or to determine that title to any portion
of the work in progress, materials, or equipment has passed to OWNER free and clear of any
liens, claims, security interests, or encumbrances, or that there may not be other matters at issue
between OWNER and Contractor that might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (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
infonmation 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 AI.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 Mil be limited as provided in
paragraph A1.04.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:
Page 5 of 7 pages
(Exhibit A — Engineer's Services)
17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final.payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to
the best of ENGINEER's knowledge, information and belief and upon the exercise of 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 Project 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 A1.02.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of 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:
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.
A l .06 Texas Water Development Board ( "TWDB') coordination & final design report
A. After submittal of TWDB application in the preliminary design contract, ENGINEER will provide
coordination with TWDB necessary to complete the application approval process.
B. ENGINEER will prepare and submit documents related to Final Design Services as required by TWDB as
follows in order for the OWNER to secure release of funds. These documents shall include but not be
limited to, the following:
Page 6 of 7 pages
(Exhibit A — Engineer's Services)
1. Copy of final wastewater discharge permit, if applicable (permit to be provided by the OWNER);
2. Site map showing buffer zones, if applicable (with assistance as necessary from the OWNER);
3. Complete Plans and Specifications;
4. Final Engineering Design Report; and
S. Site Certificate (prepared by ENGINEER, to be signed by the OWNER'S Representative).
C. ENGINEER will also provide assistance to the OWNER during the Bidding, Construction, and Post -
Construction Phase to assure that procedures and documentation are in accordance with TWDB
requirements.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
Not Included
A2.02 Required Additional Services
Not Included
•
Page 7 of 7 pages
(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 PBS&Y'
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 ENGINE•ER'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).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for 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
Pages
(Exhibit B - OWNER's Responsibilities)
40
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 additi on
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.
N. Provide copies of daily observation reports prepared by OWNER's on -site representative to ENGINEER
during construction phase.
Page 2 of 2 pages
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
ENGINEE
Payments to ENGrNTEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 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- $ 48,065_ 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. Final Design Phase $ 21,365.00
b. Bidding and Negotiating Phase $ 2,000.00
c. Construction Phase $ 5,000.00
d. Post Construction Phase $ 2,000.00
e. TWDB coordination & final
design report $ 17,700.00
3.2. (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, and profit.
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).
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 times a Factor of 3.2 plus
Reimbursable Expenses and ENGINEER's
Consultant's charges, if any. Additional
Services shall not be provided 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 actual costs, verified by
receipts, plus 10% for administrative cost. 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
® Page 1 of 2 pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
•
•
reimbursement. Reimbursable Expenses shall not
exceed $ 500.00 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 wilt be the Project- related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter
multiplied by a Factor of( 1.1—
D. 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
N/A
C4.05 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)
This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between ORT`ER and
ENGINEER for Professional Services dated
Initial:
OWNER
ENGINEER
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To: OWNER
And To: CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
fumished 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.
Title:
Dated:
Page I of 2 Pages
E - Notice of Acceptability of Work)
0 (Reverse side of Notice)
•
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR'S work) under ENGfNEER'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 tonotify the Owner of such failure and take appropriate action so 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)
•
0
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER PBS&
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 ENGPN'E-ER
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 shalt 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 B+ :VII or better for all liability policies.
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 & 0 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.
Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to
execution of this agreement.
f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to City of Baytown's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
•
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional SerAces dated
Initial:
OWNER
ENGINEER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREINAFTER REFERRED TO AS THE
"CITY ") 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 ANY PERSON, FOR DAMAGE TO
ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT,
ARISING OUT OF, OR IN CONNECTION WITH THE \'FORK
DONE BY ENGINEER UNDER THIS CONTRACT CAUSED BY
THE SOLE OR JOINT NEGLIGENCE OF ENGINEER. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
ENGINEER AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY
ENGINEER TO INDEMNIFY AND PROTECT THE CITY FROM
THE CONSEQUENCES OF ENGINEER'S OWN NEGLIGENCE,
WHETHER THAT NEGLIGENCE IS THE SOLE OR A
CONCURRING CAUSE OF THE RESULTING INJURY, DEATH
OR DAMAGE. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT
IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF
THE CITY. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE CITY FROM
WHICH THE CITY IS INDEMNIFIED, ENGINEER FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
CITY. THE INDEMNITY PROVIDED FOR IN THIS ARTICLE IX
SHALL SURVIVE THE TERMINATION OR EXPIRATION OF
THIS AGREEMENT.
Page 1 of 2 Pages
(Exhibit K - Indemnification)
• 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.
•
As used in this Exhibit K, an agent of the City shall mean and include a member of a
board or commission of the City and such other persons or entities authorized to act on
behalf of the City.
The protections afforded to OWNER in this Exhibit K shall control and supersede
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.
R: 1Karea \Files\Engincering\Enginecring Agrcemcnts\PBSRJ\West District WWrP Lill Station Final Design\FinalContraetdoe
Page 2 of 2 Pages
(Exhibit K - Indemnification)