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Ordinance No. 9,986ORDINANCE NO. 9986
® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
MAKING A CHANGE IN THE CITY OF BAYTOWN'S FISCAL YEAR 2004 -2005
BUDGET FOR MUNICIPAL PURPOSES IN ORDER TO REPROGRAM FUNDS
FROM THE CAPITAL IMPROVEMENT PROGRAM FUND FOR THE DESIGN OF
THE NEEDLEPOINT ROAD ELEVATED WATER STORAGE TANK PROJECT;
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT
WITH CLAUNCH & MILLER, INC., FOR THE DESIGN OF THE NEEDLEPOINT
ROAD ELEVATED WATER STORAGE TANK PROJECT; AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED
TWO HUNDRED SEVEN THOUSAND FIFTY AND NO /100 DOLLARS
($207,050.00); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FORTH E 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 hereby changes in the City of
Baytown's Fiscal Year 2004 -2005 budget for municipal purposes to reprogram ONE HUNDRED
THIRTY THOUSAND AND NO 1100 DOLLARS ($130,000.00) from the Capital Improvement Program
Fund for the design of the Needlepoint Road Elevated Water Storage Tank Project as more particularly
described in Exhibit "A," which is attached hereto and incorporated herein for all intents and purposes.
Section 2: 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
Claunch & Miller, Inc., for the design of the Needlepoint Road Elevated Water Storage Tank Project. A
copy of said agreement is attached hereto, marked Exhibit "B," and made a part hereof for all intents and
purposes.
Section 3: That the City Council of the City of Baytown authorizes payment to Claunch &
Miller, Inc., in an amount not to exceed TWO HUNDRED SEVEN THOUSAND FIFTY AND NO /100
DOLLARS ($207,050.00) for professional engineering services in accordance with the contract.
Section 4: 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 3 hereof may not be increased by more than twenty -five
percent (25 %).
Section 5: 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 27th day of January, 2005.
CALVIN MUNDINGER, Mayor
ATTEST:
_rr
SMITH-, City Clerk
® APPROVED AS TO FORM:
NACIO RAMIREZ, SIV, City Attorney
RAKarenTdes \City Council \Ordinanccs\2005\.lanuary 27\ ClaunchS MillerNeedlepointRoadElevatedStorageTank .doc
City of Baytown
Water Tower Advance Funding Exhibit
CIPF
2005 Advance Total
Description Budget Funding Budget
New Water Tower Design Costs $100,000 $130,000 $230,000
EMU A
0
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of as of
Between
The City of Baytown ( "OWNER ")
and
Claunch & Miller, Inc. ( "ENGINEER ")
( "Effective Date ")
OWNER, in conformance with all Texas Commission on Environmental Quality rules and regulations, intends to
construct the Needlepoint Road l mg Elevated Water Storage Tank, including all associated site work, controls,
structural, piping and mechanical/electrical components, on a 12 acre site abutting the west side of the existing
Union Pacific Railroad's rail spur and the south side of Needlepoint Road as well as approximately 200 feet of 12-
inch water line along Needlepoint Road to the site. ( "Project ").
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
® Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 12
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TABLE OF CONTENTS Pate
ARTICLE I - SERVICES OF ENGINEER ......................................................................................... ............................... 3
1.01 Scope ................................................................................................................................. ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES ................................................................................. ............................... 3
2.01 General ............................................................................................................................... ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ............................................................................................................................... ...............................
3
3.02 Suspension .......................................................................................................................... ...............................
3
ARTICLE 4 - PAYMENTS TO ENGINEER ....................................................................................... ...............................
3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............. ...............................
3
4.02 Other Provisions Concerning Payments ............................................................................ ...............................
3
ARTICLE 5 - OPINIONS OF COST... ........ ........ ...... ......... ...... ......... ............................................................................
4
5.01 Opinions of Probable Construction Cost._ ....................................................................... ...............................
4
5.02 Designing to Construction Cost Limit .............................................................................. ...............................
4
5.03 Opinions of Total Project Costs ..............._..................................................---................ ._.............................
4
ARTICLE 6 - GENERAL CONSIDERATIONS ..................................................._............................ ...............................
4
6.01 Standards of Performance .................................................................................................. ...............................
4
6.02 Authorized Project Representatives ...................................................._............................. ...............................
5
6.03 Design without Construction Phase Services .................................................................... ...............................
5
6.04 Use of Documents.. ...... — ........ ........ ...... ......... ................ ........ .................. ....... ..........................................
5
6.05 Insurance ............................................................................................................................. ...............................
6
6.06 Termination.. ........ .......................... ........ ....................... ................. ........ ........... ................. .......................
6
6.07 Controlling Law ................................................................................................................. ...............................
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 ................................................................ ............................... 11
8.01 Exhibits Included ... .................. ......................................................................................................... ............... 1 !
8.02 Total Agreement ............................................................................................................. ........I— ..................... 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. If authorized by OWNER, ENGINEER
shall furnish Resident Project Representative(s) with duties,
responsibilities and limitations of authority as set forth in
Exhibit D.
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set
forth herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and
compensation under this Agreement have been agreed to for
the design of the Project. ENGINEER's obligation to render
services hereunder will be for whatever period necessary for
the final completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement
the term "day" means a calendar day of 24 hours.
3.02 Suspension
A. (Modified) If OWNER fails within a
reasonable period of time to give written authorization to
proceed with any phase of services after completion of the
immediately preceding phase, or if OWNER delays
ENGINEER's services, ENGINEER may, after giving seven
days written notice to OWNER, suspend services under this
Agreement. If during such seven -day period, OWNER gives
written authorization to proceed or ENGINEER'S services
are no longer delayed by OWNER, ENGINEER may not
suspend services under this Agreement.
B. (Modified) If ENGINEER's services are
delayed or suspended in whole or in part by OWNER,
ENGINEER shall be entitled to equitable adjustment of rates
and amounts of compensation provided for elsewhere in this
Agreement to reflect, reasonable costs incurred by
ENGINEER in connection with, among other things, such
delay or suspension and reactivation and the fact that the time
for performance under this Agreement has been revised.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay
ENGINEER for Basic Services performed or furnished under
Exhibit A, Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall
pay ENGINEER for Additional Services performed or
furnished under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be
prepared in accordance with ENGINEER's standard
invoicing practices and will be submitted to OWNER by
ENGINEER, unless otherwise agreed. ENGINEER shall
supply detailed back -up information along with each invoice
in order for the OWNER to effectively evaluate the fees and
charges. The amount billed in each invoice will be calculated
as set forth in Exhibit C.
B. (Modified) Payment of Invoices. Invoices are
due and payable within 30 days after the receipt of the invoice
and the necessary backup information. If OWNER fails to
make any payment due ENGINEER for services and
expenses within 30 days after receipt of ENGINEER's
invoice and backup documentation therefor, the amounts due
ENGINEER will be increased at the rate of 1.0% per month
(or the maximum rate of interest permitted by law, if less)
after the 30th day. ENGINEER may after giving seven days
written notice to OWNER suspend services under this
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Page 3 of 12
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.7
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 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 Ternninalion.
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 ,fictions. 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.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
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Page 4 of 12
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C7A
of its Effective Date. Changes to these. requirements after the
Effective Date of this Agreement may be the basis for
modifications to 0WNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for,
and ENGINEER may rely upon, the accuracy and
completeness of all requirements, programs, instructions,
reports, data, and other information furnished by OWNER to
ENGINEER pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER. ENGINEER
may use such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry
out its other responsibilities in a timely manner and shall bear
all costs incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the
Construction Phase, OWNER shall notify ENGINEER of any
variations from the language indicated in Exhibit E, "Notice
of Acceptability of Work," or of any other notice or
certification that ENGINEER will be requested to provide to
OWNER or third parties in connection with the Project.
OWNER and ENGINEER shall reach agreement on the terms
of any such requested notice or certification, and OWNER
shall authorize such Additional Services as are necessary to
enable ENGINEER to provide the notices or certifications
requested.
H. (Modified) ENGINEER shall not be required to
sign any documents, no matter by whom requested, that
would result in 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 ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsible
for the acts or omissions of any Contractor(s), subcontractor
or supplier, or of any of the Contractor's agents or employees
or any other persons (except ENGINEER's own employees
and its consultants for which it is legally liable) at the Site or
otherwise 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 Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of
this Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
ply.
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction
Phase services with either OWNER's representatives or a
third party, ENGINEER's Basic Services under this
Agreement will be considered to be completed upon
completion of the Final Design Phase or Bidding or
Negotiating Phase as outlined in Exhibit A.
B. It is understood and agreed that if
ENGINEER's Basic Services under this Agreement do not
include Project observation, or review of the Contractor's
performance, or any other Construction Phase services, and
that such services will be provided by OWNER, then
OWNER assumes all responsibility for interpretation of the
Contract Documents and for construction observation or
review and waives any claims against the ENGINEER that
may be in any way connected thereto.
6.04 Use of Documents
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
® Standard Form of Agreement
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•
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
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk.
D. Because data stored in electronic media format
can deteriorate or be modified inadvertently or otherwise
without authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60 -day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic
files and the hard copies, the hard copies govern.
H. Any verification or adaptation of the
Documents for extensions of the Project or for any other
project will entitle ENGINEER to further compensation at
rates to be agreed upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain
insurance as set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than those specified in Exhibit G. If
so requested by OWNER, with the concurrence of
ENGINEER, and if commercially avaitable, 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:
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
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Page 6 of 12
ENGINEER's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof; provided, however, that if
and to the extent such substantial failure cannot be
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
2. For convenience by OWNER effective
upon the receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the
law of the state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and ENGINEER each is hereby
bound and the partners, successors, executors, administrators
and legal representatives of OWNER and ENGINEER (and
to the extent permitted by paragraph 6.08.13 the assigns of
OWNER and ENGINEER) are hereby bound to the other
party to this Agreement and to the partners, successors,
executors, administrators and legal representatives (and said
assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
B. Neither OWNER nor ENGINEER may
assign, sublet, or transfer any rights under or interest
(including, but without limitation, moneys that are due or may
become due) in this Agreement without the written consent of
the other, except to the extent that any assignment, subletting,
or transfer is mandated or restricted by law. Unless
specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the
assignor from any duty or responsibility under this
Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be
construed to create, impose, or give rise to any duty
owed by OWNER or ENGINEER to any Contractor,
Contractor's subcontractor, supplier, other individual or
entity, or to any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other parry. 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
ENGWEER'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
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Page 7 of 12
® justify ENGINEER's terminating this Agreement for cause on
30 days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
or by a commercial courier service. Additionally, notices
may be given via facsimile or by electronic mail if such
notice is also given personally, or by registered or certified
mail or by a commercial courier service. All notices shall be
effective upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement
held to be void or unenforceable under any Laws or
Regulations shall be deemed stricken, and all remaining
provisions shall continue to be valid and binding upon
OWNER and ENGINEER, who agree that the Agreement
shall be reformed to replace such stricken provision or part
thereof with a valid and enforceable provision that comes as
close as possible to expressing the intention of the stricken
provision.
6.15 Waiver
A. Non - enforcement of any provision by
either party shall not constitute a waiver of that provision, nor
shall it affect the enforceability of that provision or of the
remainder of this Agreement.
6.16 Headings
A. The headings used in this Agreement are
for general reference only and do not have special
significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement
(including the Exhibits hereto) and printed with initial or all
capital letters, the terms listed below have the meanings
indicated, which are applicable to both the singular and
plural thereof:
1. Addenda -- Written or graphic instruments
issued prior to the opening of Bids which clarify, correct,
or change the Bidding Documents.
2. Additional Services - -The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement- -This "Standard Form of
Agreement between OWNER and ENGINEER for
Professional Services," including those Exhibits listed in
Article 8 hereof.
4. Application for Payment - -The form
acceptable to ENGINEER which is to be used by
Contractor in requesting progress or final payments for
the completion of its Work and which is to be
accompanied by such supporting documentation as is
required by the Contract Documents.
5. Asbestos - -Any material that contains more
than one percent asbestos and is friable or is releasing
asbestos fibers into the air above current action levels
established by the United States Occupational Safety and
Health Administration.
6. Basic Services- -The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 1, of this Agreement.
7. Bid- -The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. Bidding Documents - -Thc 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 alter the Effective Date of
the Construction Agreement.
® Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
10. Construction _ Agreement - -The written
instrument which is evidence`of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract- -The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. Construction Cost - -The cost to OWNER of
those portions of the entire Project designed or specified
by ENGINEER. Construction Cost does not include
costs of services of ENGINEER or other design
professionals and consultants, cost of land, rights -of -way,
or compensation for damages to properties, or
OWNER's costs for legal, accounting, insurance
counseling or auditing services, or interest and financing
charges incurred in connection with the Project, or the
cost of other services to be provided by others to
OWNER pursuant to Exhibit B of this Agreement.
Construction Cost is one of the items comprising Total
Project Costs.
13. (Modified) Contract ' Documents- -
Documents that establish the rights and obligations of the
parties engaged in construction and include the
Construction Agreement between OWNER and
Contractor and all documents referenced therein,
Addenda (which pertain to the Contract Documents),
Contractor's Bid (including documentation
accompanying the Bid and any post -Bid documentation
submitted prior to the notice of award) when attached as
an exhibit to the Construction Agreement, the notice to
proceed, the bonds, appropriate certifications, insurance
documents the General Conditions, the Supplementary
Conditions, the Specifications and the Drawings as the
same are more specifically identified in the Construction
Agreement, together with all Written Amendments,
Change Orders, Work Change Directives, Field Orders,
and ENGINEER's written interpretations and
clarifications issued on or after the Effective Date of the
Construction Agreement, Approved Shop Drawings and
the reports and drawings of subsurface and physical
conditions are not Contract Documents.
14. Contract Price - -The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated in
the Construction Agreement.
15. Contract Times- -The numbers of days or
the dates stated in the Construction Agreement to:
(i) achieve Final Completion, and (ii) complete the Work
so that it is ready for final payment as evidenced by
ENGINEER's written recommendation of final payment.
16. Contractor - -An individual or entity with
whom OWNER enters into a Construction Agreement.
17. Correction Period- -The time after Final
Completion during which Contractor must correct, at no
cost to OWNER, any Defective Work, normally one year
after the date of Final Completion or such longer period
of time as may be prescribed by 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. ENGINEER's Consultants -- Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
24. Field Order - -A written order issued by
ENGINEER which directs minor changes in the Work
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
® but which does not involve a change in the Contract which were annotated by Contractor to show changes
Price or the Contract Times. made during construction.
25. Final Completion shall mean that all work
has been completed, all final punch list items have been
inspected and satisfactorily completed, all payrrients to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the
Contract Documents which sets forth terms, conditions,
and procedures that govern the Work to- be performed or
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.
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
34. Reimbursable Expenses- -The expenses
incurred directly by ENGINEER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
35. Resident Project Representative - -The
authorized representative of ENGINEER, if any,
assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project
Representative will be ENGINEER's agent or employee
and under ENGINEER's supervision. As used herein,
the term Resident Project Representative includes any
assistants of Resident Project Representative agreed to by
OWNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
36. .Samples -- Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
37. Shop Drawings - -All drawings, diagrams,
illustrations, schedules, and other data or information
which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to ENGINEER
to illustrate some portion of the Work.
38. Site - -Lands or areas indicated in the
Contract Documents as being furnished by OWNER
upon which the Work is to be performed, rights -of -way
and casements 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.
® Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
® 41. Supplementary Conditions- -That part of the B. Exhibit B, "OWNER's Responsibilities,"
Contract Documents which amends or supplements the consisting of two (2) pages.
General Conditions.
41 (Modified) Total Project Costs - -The sum
of the Construction Cost, allowances for contingencies,
the total costs of services of ENGINEER or other design
professionals and consultants, cost of land, rights -of -way,
compensation for damages to properties, OWNER's
costs for legal, accounting, insurance counseling or
auditing services, interest and financing charges incurred
in connection with the Project, and the cost of other
services to be provided by others to OWNER pursuant to
Exhibit B of this Agreement.
43. Work - -The entire completed construction
or the various separately identifiable parts thereof
required to be provided under the Contract Documents
with respect to this Project. Work includes and is the
result of performing or furnishing labor, services, and
documentation necessary to produce such construction
and famishing, installing, and incorporating all materials
and all equipment into such construction, all as required
by the Contract Documents.
44. Work Change Directive - -A written
directive to Contractor issued on or after the Effective
Date of the Construction Agreement and signed by
OWNER upon recommendation of the ENGINEER,
ordering an addition, deletion, or revision in the Work, or
responding to differing or unforeseen subsurface or
physical conditions under which the Work is to be
performed or to emergencies. A Work Change Directive
will not change the Contract Price or the Contract Times
but is evidence that the parties expect that the change
directed or documented by a Work Change Directive will
be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if
any, on the Contract Price or Contract Times.
45. Written Amendment - -A written amendment
of the Contract Documents signed by OWNER and
Contractor on or after the Effective Date of the
Construction Agreement and normally dealing with the
non - engineering or non - technical rather than strictly
construction- related aspects of the Contract Documents,
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services,"
consisting of seven (7) 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 I to
12 inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
® Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page l I of 12
r 1
LJ
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: (281) 420 -6549
Facsimile Number: (281) 420 -6586
E -Mail Address: wrpedersen @baytown.org
ENGINEER: CLAUNCH & MILLER, INC.
Printed Name
Title
Date Signed
Address for giving notices:
4635 SOUTHWEST FREEWAY
SUITE 1000
HOUSTON, TEXAS 77027
Designated Representative (paragraph 6.02.A):
Samuel W. Kruse, Jr., P.E.
Title: Senior Promect Mana er
Phone Number: (713) 622 -9264
Facsimile Number: (713) 622 -9265
E -Mail Address:SKruse(@claunchmiIler.com
® Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
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:
ENGINEER's Services
OWNER
ENGINEER _
Article I of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART I -- BASIC SERVICES (Modified)
A1.01 Preliminary Design Phase
A. ENGINEER's design considerations shall include:
Making sure that water can be mixed through the tank to ensure good water quality in the
distribution system by minimizing water age and achieving water "turn over";
2. Ensuring that the operating levels and associated range are appropriate for the particular facility to
ensure that it provides efficient service throughout its expected life for the service area;
3. A phase I and phase II environmental assessment have been previously performed to evaluate any
wetlands issues, endangered species, or archeological significance — we understand that there are
no significant environmental issues associated with the project and that existing wetlands on site
are non jurisdictional;
4. Associated components for the elevated storage tank will be site clearing, the access road,
controls, piping, site fencing, site drainage, and tank appurtenances; and
5. Providing a coating system that will ensure long lasting service for the facility
B. ENGINEER shall:
Consult with OWNER to define and clarify OWNER's requirements for the Project and available data;
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services;
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment (if any);
4. Perform or provide the following additional Preliminary Design Phase tasks or deliverables
a. Gather available information including water master planning materials, existing hydraulic
models, existing Phase I and Phase II Environmental Studies, site plan for Northeast Wastewater
Treatment Plant ( "NEWWTP "), and population / water demand forecasting data;
b. Visit existing Elevated Water Storage Tanks with City staff to discuss preferences and
requirements for the proposed facility components;
® Page 1 of 7 pages
(Exhibit A — Engineer's Services)
is
c. Perform a field visit to the project area to record representative operating pressures in the water
distribution system in the vicinity of the proposed elevated water storage tank;
d. Perform a site assessment for the planned facility site including water modeling verification of the
site suitability based on hydraulic considerations. If the site does not appear suitable after the
hydraulic assessment, other sites will be considered as additional services to be defined further;
e. Collect and review existing planning materials and existing as -built paving, utility, and pipeline
company construction drawings for utilities that exist or are planned in the vicinity of the plant
site. Contact private utility companies that are involved to obtain information on the existing
facilities and requirements which may impact the project;
f. Once the suitability of the site has been determined, provide a site design survey for the facility.
The survey will use existing horizontal and vertical control to provide topographic information for
construction of the proposed facilities. Surveying services to be provided under subcontract by
Kuo and Associates, Inc.;
g. Once the suitability of the site has been determined, provide a geotechnical investigation of the
construction of the proposed structures and utilities including an analysis of existing soils, and
recommendations for structural designs, foundations, trench dewatering, trench safety, pavement
design, and construction methods for structures. Geotechnical services to be provided under
subcontract by HBC TerraCon, Inc.;
h. Perform preliminary sizing calculations for required storage volume, operating water levels, and
required appurtenances;
i. Develop the preliminary site layout for the facility including: access road, security fence, elevated
water Storage tank, controls, site drainage facilities, and utility requirements; and
j. Develop and evaluate alternatives for the elevated water storage tank (composite, spheroid,
hydropillar, leg style tank ) and controls;
5. 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;
6. (Modified) Attend meetings with OWNER and OWNER'S designated boards and/or commissions to
receive input into OWNER'S requirements for the Project and evaluation potential solutions available
to OWNER;
(Modified) Prepare a preliminary engineering report (the "Report") which will, as appropriate, contain
schematic layouts, sketches, schedule of events, and conceptual design criteria with appropriate
exhibits to indicate the agreed -to requirements, considerations involved, and those alternate solutions
available to OWNER which ENGINEER recommends. This Report will be accompanied by
ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the
Project with each component separately itemized, including the following, which will be separately
itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated
total costs of design, professional, and related services provided by ENGINEER and, on the basis of
information furnished by OWNER, allowances for other items and services included within the
definition of Total Project Costs;
8. Furnish three (3) review copies of the Report to OWNER within ninety (90) days of authorization to
begin services and review it with OWNER;
9. Meet with OWNER's staff to discuss the project and receive any requested changes for incorporation
into the final design; and
Page 2 of 7 pages
(Exhibit A — Engineer's Services)
is
10. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Report to the OWNER within twenty (20) days after completion of
reviewing it with OWNER.
C. (Modified) ENGINEER's services under the .Preliminary Design Phase will be considered complete on the
date when the final copies of the revised Report have been delivered to and accepted by OWNER.
A1.02 Final Design Phase ,
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of
probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER -
directed modifications or changes in the scope, extent, character, or design requirements of or for the Project,
and upon written authorization from OWNER, ENGINEER shall:
I. (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 A I.OI .A.5.
4. Perform or provide the following additional final Design Phase tasks or deliverables:
a. Prepare contract documents including plans, specifications, and bidding documents associated
with the design of all aspects of the elevated water storage tank including: site drainage and
access, site utilities, elevated water storage tank, electrical and controls, mechanical, structural,
and safety components based on the work performed in the Preliminary Engineering phase, any
changes obtained from the review process of the PER. Plans to include all civil, structural,
mechanical, and electrical components for the facilities as well as trench safety, storm water
pollution prevention measures, and any required traffic control;
b. Coordinate agency reviews and assist the City in obtaining approvals from the Texas Commission
on Environmental Quality as well as private utilities and pipeline companies;
c. Submit 3 sets of draft documents to the City for 50% and 90% reviews;
d. Meet with City staff as necessary to review project progress and discuss comments from the 50%
and 90% review; and
e. Incorporate changes developed from the City and agency reviews and deliver 3 copies of the final
contract documents for City use.
5. Prepare and famish Bidding Documents for review and approval by OWNER, its legal counsel, and other
advisors, as appropriate, and assist OWNER in the preparation of other related documents.
6. Incorporate changes developed from the City and agency reviews and 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 3 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.
U
B. in the event that the Work designed or specified by ENGINEER is to be performed or furnished
under more than one prime contract, or if ENGINEER's services are to be separately sequenced with the work
of one or more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior
to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services
during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to
sequence and coordinate properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by ENGINEER upon which the
ENGINEER's compensation has been established under this Agreement is one.
D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the
date when the submittals required by paragraph A 1.03.A.6 have been delivered to and accepted by OWNER.
A 1.03 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:
I. 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:
a. Coordinate pre -bid conferences;
b. Assist in the bidding process by providing recommended contractor list, dispense bid
documents to potential bidders, answer questions throughout the bidding process, and assist in
addendum preparation.
c. Review bids, prepare bid tabulations, research low responsive bids, and prepare
recommendation of award letter for the contract.
d. Deliver 5 sets of approved contract documents for execution by the construction contractor
and city and sets of additional plans and specifications to the contractor, inspector, and
materials testing firm as needed.
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.
Page 4 of 7 pages
(Exhibit A — Engineer's Services)
® 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.
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
Page 5 of 7 pages
(Exhibit A — Engineer's Services)
Contractor, for safety precautions and programs incident to Contractor's work, or for any failure
of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. Accordingly, ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its
work in accordance with the Contract Documents.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
7. Clarifications and Interpretations: Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
S. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or- equal." Evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and
progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show
partiality to OWNER or Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWNER, based on such observations and review, that, to the best of ENGINEER's
knowledge, information and belief, Contractor's work has progressed to the point indicated, the
Page 6 of 7 pages
(Exhibit A — Engineer's Services)
® quality of such work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in the recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's
responsibility to observe Contractor's work. In the case of unit price work, 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 ENGINEER's recommendation of any payment including final
payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's
work in progress or for the means, methods, techniques, sequences, or procedures of
construction or safety precautions or programs incident thereto, or Contractor's compliance with
Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will
also not impose responsibility on ENGINEER to make any examination to ascertain how or for
what purposes Contractor has used the moneys paid on account of the Contract Price, or to
determine that title to any portion of the work in progress, materials, or equipment has passed to
OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there
may not be other matters at issue between OWNER and Contractor that might affect the amount
that should be paid.
14. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this
information as provided by Contractor, and deliver three (3) copies of the same to OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and
required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings,
Samples and other data approved as provided under paragraph A 1.04.A.9, and the annotated record
documents which are to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such ENGINEER's review will be limited as provided in
paragraph A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents
from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings on mylar showing appropriate
record information based on Project annotated record documents received from Contractor.
15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire
Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to
determine if the Work is Substantially Complete. If after considering any objections of OWNER,
ENGINEER considers the Work Substantially Complete, ENGINEER shall deliver a certificate of
Substantial Completion to OWNER and Contractor.
16. Additional Tasks. Perform or provide the following additional Construction Phase tasks or
deliverables:
Page 7 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 A 1.02.0,
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
famishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
A 1.05 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. Provide Operations and Maintenance Manuals to the OWNER as well as electronic as -built
drawings for the completed Project, in a format acceptable to the OWNER.
5. 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.
6. Perform or provide the following additional Post - Construction Phase tasks or deliverables: N/A
7. In company with OWNER or OWNER's representative, provide an inspection of the Project
within one month before the end of the Correction Period to ascertain whether any portion of the
Work is subject to correction.
B. The Post - Construction Phase services may commence during the Construction Phase and, if not
otherwise modified in this Exhibit A, will terminate at the end of the Correction Period.
PART 2 -- ADDITIONAL SERVICES
A2.01 Addilional Services Requiring OWNER's Authorization in Advance
a. Traffic control planning and design
b. Mill, shop, or laboratory inspections of materials & equipment
c. Additional copies or documents beyond the number specified in basic services
d. Value engineering
Page 8 of 7 pages
(Exhibit A — Engineer's Services)
• e. Redesign to reflect scope changes requested by the owner or changing design criteria, or
equipment substitutions authorized
f. Expert Witness in litigation
g. Operational phase services
h. Preparation of detailed permit applications
i. Project Peer Review
A2.02 Required Additional Services
Not Included
v
Page 9 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's Responsibilities
OWNER
ENGINEER
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 fumish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and fumish 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, fumish 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.
I. (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).
1. (Deleted).
® Page l of 2 pages
Pages
(Exhibit B - OWNER's Responsibilities)
® J. Advise ENGINEER of the identity and scope of services of any independent consultants employed
by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructibility review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others
for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust
ENGINEER's opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in
addition to, ENGINEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and
limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of
ENGINEER.
M. Attend the pre -bid conference, bid opening, pre - construction conferences, construction progress and
other job related meetings, and Substantial Completion and final payment inspections.
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 1 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 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, based upon the rate schedule, which is
attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes,
of $ 178,000 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 $39,000
b. Final Design $71,500
c. Construction/Post- Construction $19,500
d. Inspection Services $48,000
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
OWNER
ENGINEER
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:
I. 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 A2.01.A.13, an amount equal to
ENGINEER's Direct Labor Costs, based upon
the rate schedule, which is attached as Appendix
1 of Exhibit C, times a Factor of 2.99 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. Additional
Services as outlined in Section A2.01 shall not
exceed $10,000.00.
(Not Used).
Page 1 of 2 pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
0
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
reccipts, 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
reimbursement. Reimbursable Expenses shall not
exceed $ 7.500.00 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 will be the
Project - related internal expenses actually incurred of
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
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 1.0. The consultant
charges shall not exceed the following amounts
specified for each of the following services, unless
approved in writing by the OWNER. The charges
include the factor, and are as follows:
(1) Surveying $ 7,150
(2) Geotechnical $ 4,400
C4.06 Direct Gabor 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 ENGWEER'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 OWNER 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:
And To:
CONTRACTOR
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
M
Title:
Dated:
0
Page 2 of 2 Pages
E - Notice of Acceptability of Work)
® (Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been
employed by OWNER to perform or furnish during construction of the Project (including observation of the
CONTRACTOR's work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
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)
® This is EXHIBIT G, consisting of 1 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect insurance against claims for injuries to or death of persons or damages to property which may arise
out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable.
The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish
separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Commercial General Liability (CGL)
General Aggregate: $1,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $500,000
a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $500,000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
c. Coverage will be in force for three (3) years after project is completed.
® Page 1 of 2 Pages
(Exhibit G - Insurance)
® Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has
been given to the OWNER via certified mail, return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of 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 & 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 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)
0
is
This is EXHIBIT K, consisting of 1 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND 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 WORK 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.
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 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.
Page 1 of 2 Pages
(Exhibit K - Indemnification)
F- -I
LJ
® Page 2 of 2 Pages
(Exhibit K - Indemnifi cation)