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Ordinance No. 10,124ORDINANCE NO. 10,124 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH SCL ENGINEERING, L.L.C., FOR THE WEST DISTRICT WASTEWATER TREATMENT PLANT (WWTP) EXPANSION PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED SEVEN HUNDRED FIFTY -TWO THOUSAND EIGHT HUNDRED FIFTY -FIVE AND NO /100 DOLLARS ($752,855.00) MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section l: 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 SCL Engineering, L.L.C., for the West District Wastewater Treatment Plant (WWTP) Expansion Project. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to SCL Engineering, L.L.C., in an amount not to exceed SEVEN HUNDRED FIFTY -TWO THOUSAND EIGHT HUNDRED FIFTY -FIVE AND NO 1100 DOLLARS ($752,855.00) for professional engineering services in accordance with the contract. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of Baytown this the 1 I "' day of August, 2005. z � CALVIN MUNDINGER, Mayor ATTEST: �61ffllic) (YARI W. SMI T H, City Clerk APPROVED AS TO FORM: • ACIO RAMIREZ, City Attorney R:\Karen\Files \CityCounciR Ord inances V005\August II\ sCLWasieWaterTreatementPlant .doc STANDARD FORM OF AGREEMENT ® BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of Between The City of Baytown ( "OWNER ") and SCL Engineering ( "ENGINEER ") ( "Effective Date "). OWNER intends to expand the West District Wastewater Treatment Plant, to upgrade the effluent pump station and to replace the force main. ( "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 LWIT A TABLE OF CONTENTS Page ® ARTICLE I - SERVICES OF ENGINEER ................ I ................... .... ...... ...... .............. .. .......... ............................................ 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 ARTICLE4 - PAYMENTS TO ENGINEER ........................................................................................ ..............................3 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............... ..............................3 4.02 Other Provisions Concerning Payments ..............................................:............................... ..............................3 ARTICLE5 - OPINIONS OF COST ..................................................................................................... ..............................4 5.01 Opinions of Probable Construction Cost ..............................._........................................... ..............................4 5.02 Designing to Construction Cost Limit ................................................................................ ..............................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 ................................................................................................................ ..............................6 6.05 Insurance ............................................................................................................................. ............................... 6 6.06 Termination .......................................................................................................................... ..............................6 6.07 Controlling Law ................................................................................................................... ..............................7 6.08 Successors, Assigns, and Beneficiaries .............................................................................. ............................... 7 6.09 Dispute Resolut ion ............................................................................................................... ..............................7 6.10 Hazardous Environmental Condition .................................................................................. ..............................7 6.11 Allocation of Risks ......................................................................................................_...... ..............................8 6.12 Notices- ............ ................................................................................................................................................ 8 6.13 Survival ................................................................................................................................ ..............................8 6.14 Severability ............... ............................ - ........................................................................................................... 8 6.15 Waiver ................................... ... .......................................................................... ................................. ............... 8 6.16 Headings .............................................................................................................................. ..............................8 ARTICLE7 - DEFINITIONS ................................................................................................................ ..............................8 7.01 Defined Terms ..........-- ......................_......--_.............................................._............._... ...........................__.. R ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ..................._......................................._. ....................._......... 8.01 Exhibits Included ................................................................................................................ .............................11 8.02 Total Agreement ................................... ............................. .............................................................................. ® Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 12 ARTICLE 1 - SERVICES OF ENGINEER 0 1.01 Scope • A. ENGINEER shall provide the Basic, Contingent Basic and Additional Services set forth herein and in Exhibit A. B. Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. C. (Deleted). ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) ENGINEER's services and compensation under this Agreement have been agreed to for the 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 under the Basic Services specified 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 I 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. (Added) For Contingent Basic Services. OWNER shall pay ENGINEER for Contingent Basic Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. D. (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 ENGfNEER'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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 • will be increased at the rate of 1,0% per month (or the maximum rate of interest permitted by law, if less) after the 30th day. ENGINEER may after giving seven days written notice to OWNER suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that ENGINEER will not charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and withheld and that ENGINEER will not suspend services under the agreement on account of a disputed invoice or on account of monies withheld. All payments will be credited first to principal and then to interest. C. Disputed Invoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. In the event of any termination under section 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. (Deleted) E. (Modified) Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. ENGINEER's opinions of probable Construction Cost provided for herein are to be made on the basis of 1181 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 - fumished information upon which ENGINEER, is authorized to rely as provided in Section 6.011. 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER. D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER - mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities -or to ENGINEER's scope of services, times of performance, or compensation. E. (Modified) OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information famished by OWNER to ENGINEER pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. 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 famished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services A. Should OWNER provide Construction Phase services with either OWNER's representatives or a third party, ENGWEER'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. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 12 • • 6.04 Use of Documents A. (Modified) Upon execution of this Agreement, the ENGINEER grants to the OWNER an ownership interest in the Instruments of Service. The ENGINEER shall obtain similar interests from the OWNER and the ENGINEER's consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the ENGINEER shall be required to tender to OWNER all Instruments of Service; provided OWNER has paid all monies, excluding any disputed amount, due and owing to ENGINEER in accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes 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 fumished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected.within the 60 -day acceptance period. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long -term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER's sole risk and OWNER hereby releases ENGINEER from any liability associated solely with the reuse of the Documents. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 1. For cause, ® a. (Modified) By either party upon 30 days written notice in the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party; or n 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: b. By ENGINEER upon seven days written " notice if ENGINEER is being requested by OWNER to furnish or perform services contrary to ENGINEER's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice _ begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by ENGINEER. B. Not used. 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.B the assigns of OWNER and ENGINEER) are hereby bound to the other party to this 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 I_ Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.0 shall appear in the Contract Documents. 6.09 Not Used. 6.10 Hazardous Environmental Condition A. OWNER represents to Engineer that to the best of its knowledge a Hazardous Environmental Condition does not exist. B. (Modified) OWNER has disclosed to the best of its knowledge and belief to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C. (Modified) If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER on or before the next business day of the same. D. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Environmental Condition. In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that ENGINEER is performing professional services for OWNER and that Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 • ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the Site in connection with ENGINEER's activities under this Agreement. F. If ENGINEER's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGINEER's terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.12 Notices A. (Modified) Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. Additionally, notices may be given via facsimile or by electronic mail if such notice is also given personally, or by registered or certified mail or by a commercial courier service. All notices shall be effective upon the date of receipt. 6.13 Survival A. (Modified) All express representations, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 6.15 Waiver A. Non - enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A: The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof. 1. Addenda -- Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services - -The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement- -This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment - -The form acceptable to ENGINEER which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos - -Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services- -The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Bid - -The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents- -The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of l2 r i �J 9. Change Order - -A document recommended by ENGINEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. 10. Construction Agreement- -The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. 11. Construction Contract- -The entire and integrated written agreement between the OWNER and Contractor concerning the Work. 12. Construction Cost- -The cost to OWNER of those portions of the entire Project designed or specified by ENGINEER. Construction Cost does not include costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 13. (Modified) Contract Documents -- Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor and all documents referenced therein, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, insurance documents the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price- -The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. . 15. Contract Tines--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 hvo 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, Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 C • subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. 24. Field Order - -A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25. Final Completion shall mean that all work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to subcontractors have been made, all documentation and warranties have been submitted, all closeout documents have been executed and approved by the OWNER, and the Project has been finally accepted by the OWNER. 26. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or fumished 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. 314- Record Drawings- -The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses- -The expenses incurred directly by ENGINEER in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 35. Resident Project Representative - -The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Shop Drawings - -All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to ENGINEER to illustrate some portion of the Work. 38. Site- -Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications- -That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion- -The time at which the Work (or a specified part thereof) has progressed to the point Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance • with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. • 41. Supplementary Conditions- -That part of the Contract Documents which amends or supplements the General Conditions. 42. (Modified) Total Project Costs - -The sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, compensation for damages to properties, OWNER's costs for legal, accounting, insurance counseling or auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to 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 eighteen (18) pages. B. Exhibit B, "OWNER's Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of two (3) 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 1 I of 12 • IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: CITY OF BAYTOWN Gary Jackson Title: City Manager Date Signed: Address for giving notices: P.O. BOX 424 BAYTOWN, TEXAS 77422 -0424 Designated Representative (paragraph 6.02.A): W.R. (Bill) Pedersen, P.E. Title: City Engineer Phone Number: (281) 420 -6549 Facsimile Number: (281) 420 -6586 E -Mail Address: bill.pedersen @baytown.org ENGINEER: SCL Engineering Printed Name J. S. Cargill, P.E. Title President Date Signed Address for giving notices: 11821 EAST FREEWAY, SUITE 400 HOUSTON, TX 77029 Designated Representative (paragraph 6.02.A): Darrell Morison, P.E. Title: Vice President Phone Number: (713) 450 -1300 Facsimile Number: (713) 450 -1385 E -Mail Address: dmorrison(c-bsclengineeriniZ.net Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 r 1 This is EXHIBIT A, consisting of 18 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER ENGINEER's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART 1 -- BASIC SERVICES (Modified) A.1.01 Pernzilting. Permitting services will be based on the single, existing outfall location (San Jacinto River) and shall include the following services. A. Technical Report I. Conduct required studies to support Texas Commission on Environmental Quality (TCEQ) permit application. 2. Prepare and submit TCEQ Effluent Discharge Application 3. Prepare exhibits for such application. 4. Submit the completed permit application to TCEQ and attend meetings with TCEQ and/or Owner staff as necessary for the Owner to successfully obtain a discharge permit. B. Administrative Report I. Conduct required studies to support Texas Commission on Environmental Quality (TCEQ) permit application. 2. Prepare and submit TCEQ Effluent Discharge Application 3. Prepare exhibits for such application. 4. Submit the completed permit application to TCEQ and attend meetings with TCEQ and/or Owner staff as necessary for the Owner to successfully obtain a discharge permit. A.1.02 Preliminary Design Phase. The following shall be applicable to the entire Project, which includes the expansion of the West District Wastewater treatment plant, and the upgrade of the effluent pump station and the force main replacement. A. ENGINEER shall: 1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data. 2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such data and services. Page 1 of 18 pages (Exhibit A — Engineer's 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. (Modified) Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions, which in ENGINEER's judgment meet OWNER's requirements for the Project. 5. (Added) Perform or provide the following Preliminary Design Phase tasks or deliverables: a. Coordinate with staff and project personnel to complete project tasks and meet project objectives; b. Conduct project meetings with staff at least on a monthly basis and provide appropriate minutes of the meetings and necessary documentation; c. Develop and maintain a project schedule with detailed milestones; and d. Provide quality control reviews and technical reviews of all evaluations and recommendations, technical memoranda, and reports. e. For the effluent pump station and force main aspect of the preliminary engineering report, the report shall contain the following: (1) An evaluation of existing pumping configuration, existing valve configuration, evaluate force main capacity at varying velocities, and existing controls and operation. (2) A recommended routing of effluent force main to the San Jacinto River and any necessary structures at the point of discharge. (3) A summary of recommended improvements. (4) Facility design criteria recommendations. (5) Electrical and control requirements. (6) Schedule of final design /equipment procurement/construction. (7) Probable cost of construction for the recommended improvements. 6. (Modified) Attend meetings with OWNER 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. The report shall be prepared in sufficient detail so as to: (1) clearly indicate anticipated problems; and • (2) recommend alternate solutions to the problems. The PER shall include information for the entire Project, including the wastewater treatment plant, effluent lift station and force main. Page 2 of 18 pages (Exhibit A — Engineer's Services) The preliminary engineering report will address the following aspects of the design: ® a. An evaluation of treatment processes and a recommended treatment process. b. Evaluation and recommendation for flow splitting, lift station alternatives and sludge management and processing. c. A summary of recommended improvements. d. Facility design criteria recommendations. e. Electrical and control requirements. To include electrical point of service in accordance with Centerpoint Energy's requirements, which may include a dual feed. f. Schedule of final design /equipment procurement/construction. g. Probable cost of construction for the recommended improvements. h. Furnish five (5) review copies of the Report to OWNER within ninety (90) calendar days of authorization to begin services and review it with OWNER. i. 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 fifteen (15) calendar days after completing the review of the Report with the OWNER. B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the date when the final copies of the revised Report have been delivered to and accepted by OWNER. A 1.03 Final Design Phase for the 50% Completion 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: (Modified) On the basis of the above acceptance, direction, and authorization, prepare 50% completion 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. (Modified) 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 1.02.A.5. 4. Perform or provide the following additional 50% completion Final Design Phase tasks or deliverables: a. ENGINEER shall perform a technical review of contract documents at the 50% complete stage and a constructability review of completed documents. • Page 3 of 18 pages (Exhibit A — Engineer's Services) b. ENGINEER shall conduct progress meetings at least monthly during the 50% completion design phase with Owner staff to review work completed to date, project schedule, and other issues. c. ENGINEER shall perform project management duties through the 50% completion design phase, including tracking budget and schedule and meeting with the Owner on a monthly basis for project updates. d. ENGINEER shall include in this 50% completion final design phase those tasks necessary to provide a reliable facility that meets TCEQ requirements. The scope of design will include, but not be limited to, the following major items: (1) For the wastewater treatment plant (a) Influent lift station, (b) Headworks, (c) Biological treatment process, (d) Final clarifiers, (e) Disinfection Process, (0 Sludge handling, (g) Effluent pump station and discharge force main and associated appurtenances, (h) On -site site work to include security appurtenances, fencing, gates, access roadway, parking lots, site grading, lay down area and any improvements to service road at intersection with the plant access roadway, and (i) Support facilities and buildings. (2) For the Effluent Pump Station and Force Main (a) Effluent pump station and discharge force main and associated appurtenances. 5. (Modified) Provide five full -size review documents at the 50% completion final design phase. Submit 5 final copies of the 50% completion and a revised opinion of probable Construction Cost to OWNER within forty-five (45) calendar days after authorization to proceed with this phase. 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 50% completion 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. Page 4 of 18 pages (Exhibit A — Engineer's Services) D. (Modified) ENGINEER's services under the 50% completion Final Design Phase will be considered complete on the date when the submittals required by paragraph A1.03.A.5 have been delivered to and accepted by ® OWNER. A1.04 Texas Water Development Board ( "TWDB') coordination & 50 %final design report A. After submittal of TWDB application in the preliminary design contract, ENGINEER will provide coordination with TWDB necessary to complete the application approval process. B. ENGINEER will prepare and submit documents related to 50% Final Design Services as required by TWDB in order for the OWNER to secure funds. PART 2 — CONTINGENT BASIC SERVICES (Added) If authorized in writing by OWNER, ENGINEER shall furnish Contingent Basic Services of the types listed below which are specifically authorized in writing. These services will be paid for by OWNER as indicated in Article 4 of the Agreement, subjeci to a cost - not -to- exceed established and approved. A2.01 Final Design Phase A. After acceptance by OWNER of the 50% completion Design Phase documents and revised opinion of probable Construction Cost as determined in the 50% completion Design Phase, but subject to any OWNER - directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from OWNER, ENGINEER shall: 1. (Modified) On the basis of the above acceptance, directions, and authorization, prepare final design 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. (Modified) 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 1.02.A.5. 4. Perform or provide the following additional Final Design Phase tasks or deliverables: a. ENGINEER shall perform a technical review of contract documents at the 75 %, 90% and 100% complete stage and a constructability review of completed documents. b. ENGINEER shall conduct progress meetings at least monthly during the design phase with Owner staff to review work completed to date, project schedule, and other issues. c. ENGINEER shall perform project management duties through the design phase, including tracking budget and schedule and meeting with the Owner on a monthly basis for project updates. d. ENGINEER shall include in this final design phase those tasks necessary to provide a reliable facility that meets TCEQ requirements. The scope of design will include, but not be limited to, the following major items: i. For the wastewater treatment plant 0 1. Influent lift station, Page 5 of 18 pages (Exhibit A -- Engineer's Services) 2. Headworks, • 3. Biological treatment process, 4. Final clarifiers, 5. Disinfection Process, 6. Sludge handling, 7. Effluent pump station and discharge force main and associated appurtenances, 8. On -site site work to include security appurtenances, fencing, gates, access roadway, parking lots, site grading, lay down area and any improvements to service road at intersection with the plant access roadway, and 9. Support facilities and buildings. ii. For the Effluent Pump Station and Force Main " ti 1. Effluent pump station and discharge force main and associated appurtenances. 5. (Modified) Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. Effluent Pump Station and Force Main Final Design will be included in the design documents for the WDW WTP and combined into a single review and bid document. 6. (Added) Submit completed documents to the required regulatory agencies for review /approval and respond to their comments, and if subject to TWDB requirements, submit completed documents to TWDB. 7. (Modified) Provide five full -size review documents at the 75 %, 90 %, and 100% completion stage of design. Submit 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within ninety (90) calendar days after authorization to proceed with this phase. 8. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation, including plans and specifications, were originally prepared to reflect these items, as reasonably requested by OWNER, so long as this /these request(s) is made prior to the preparation of the final bid documents. B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast - tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGINEER's compensation has been established under this Agreement is one. D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date • when the submittals required by paragraph A2.01.A.7 have been delivered to and accepted by OWNER. Page 6 of 18 pages (Exhibit A — Engineer's Services) A2.02 Texas Water Development Board ( "TWDB) coordination & final design report A. After submittal of TWDB application in the 50% completion design contract, ENGINEER will provide coordination with TWDB necessary to complete the application approval process. B. ENGINEER will prepare and submit documents related to Final Design Services as required by TWDB as follows in order for the OWNER to secure release of funds. These documents shall include but not be limited to,'the following: 1. Copy of final wastewater discharge permit, if applicable (permit to be provided by the OWNER); 2. Site map showing buffer zones, if applicable (with assistance as necessary from the OWNER); 3. Complete Plans and Specifications; 4. Final Engineering Design Report; and 5. Site Certificate (prepared by ENGINEER, to be signed by the OWNER'S Representative). C. ENGINEER will also provide assistance to the OWNER during the Bidding, Construction, and Post - Construction Phase to assure that procedures and documentation are in accordance with TWDB requirements. A2.03 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. (Modified) Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work, provide 15 sets of plans and specifications, distribute contract documents to prospective bidders, bidding agencies and vendors, 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. (Modified) Attend Mandatory Pre -Bid Conferences and the Bid openings, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work, including checking references, reviewing qualification statements and providing the OWNER written recommendations for contract award. 5. (Added) Receive and process Contractor deposits or charges for the Bidding Documents. 6. (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. A2,04 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: 1. 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, Page 7 of 18 pages (Exhibit A — Engineer's Services) 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. go 2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services associated with the Project. 3. Pre - Construction Conference. Participate in Pre - Construction Conferences 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 Constniction. In connection with observations of Contractor's work in progress while it is in progress: a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, ENGINEER will determine if Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the Work. b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 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. Page 8 of 18 pages (Exhibit A — Engineer's Services) 7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such ® clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 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 behveen OWNER and Contractor. ,Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER, based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case of unit price work, 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 A 1.04.A.5.b and other express or general limitations in this Agreement and elsewhere. Page 9 of 18 pages (Exhibit A -- Engineer's Services) 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 ENGINBER'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 A2.04.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 A2.04.A.9. 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 and in an AutoCAD format acceptable to the OWNER showing appropriate record information based on Project annotated record documents received from Contractor. The AutoCAD files for the Record Drawings will be delivered to the Owner on compact disk (CD). 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: The ENGINEER shall conduct construction progress meetings, which shall occur at least monthly; and shall attend other Project meetings when requested by the OWNER. b. Engineer will respond to all contractor BFI's. c. Engineer will log -in, track, and distribute submittals to the various disciplines and subconsultants. Page 10 of 18 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 hereinabove Construction Phase services may be rendered at different times in respect to the separate contracts. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. A.2.05 Resident Engineering. Only upon written authorization, ENGINEER shall furnish a Resident Project Representative (RPR), assistants and other field staff to assist ENGINEER in observing progress and quality of the work of Contractor in accordance with this section. Through more extensive on -site observations of the work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and deficiencies in the work of Contractor. However, 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 selected by Contractor, for safety precautions and programs incident to the work of Contractor, for any failure of Contractor to comply with laws, rules, regulations, ordinances, codes or orders applicable to Contractor's performing and furnishing the work, or responsibility of construction for Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. The duties and responsibilities of the RPR include those of ENGINEER in ENGINEER's agreement with the OWNER and in the construction Contract Documents, and specifically entail the following: A. General. RPR is ENGINEER's agent at the site, will act as directed by and under the supervision of ENGINEER, and will confer with ENGINEER regarding RPR's actions. RPR's dealings in matters pertaining to the on -site work shall in general be with ENGINEER and Contractor, keeping OWNER advised as necessary. RPR's dealings with subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with OWNER with the knowledge of and under the direction of ENGINEER. B. Duties and Responsibilities of RPR I. Schedules: Review the progress schedule, schedule of Shop Drawing submittals and schedule of values prepared by Contractor and consult with ENGINEER concerning acceptability. 2. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress meetings, job conferences and other project - related meetings, and prepare and circulate copies of minutes thereof. 3. Liaison: a. Serve as ENGINEER's liaison with Contractor, working principally through Contractor's superintendent and assist in understanding the intent of Contract Documents; and assist • Page I I of 18 pages (Exhibit A — Engineer's Services) ENGINEER in serving as OWNER's liaison with Contractor when Contractor's operations affect OWNER's onsite operations. • b. Assist in obtaining from OWNER additional details or information, when required for proper execution of the Work. 4. Shop Drawings and Samples: a. Engineer shall maintain a tracking log of Submittals, Shop Drawings and Samples. b. Receive Samples which are fumished'at the site by Contractor, and notify ENGINEER of availability of Samples for examination. c. Advise ENGINEER and Contractor of the commencement of any Work requiring a Shop Drawing or Sample if the submittal has not been approved by ENGINEER. 5. Review of Work, Rejection of Defective Work, Inspections and Tests: a. Conduct on -site observations of the Work in progress to assist ENGINEER in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to ENGINEER whenever RPR believes that any Work will not produce a completed Project that conforms to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise ENGINEER of Work that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. c. Verify that tests, equipment and systems start -up and operating and maintenance training are conducted in accordance with the Contract Documents in the presence of appropriate personnel, and that Contractor maintains adequate records thereof, and observe, record and report to ENGINEER appropriate details relative to the test procedures and start -ups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections and report to ENGINEER. 6. Interpretation of Contract Documents: Report to ENGINEER when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by ENGINEER. 7. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings or Specifications and report with RPR's recommendations to ENGINEER. Transmit to Contractor in writing decisions as issued by ENGINEER. 8. Records: a. Maintain, in Engineer's office, orderly files (using Owner file codes, if applicable) for correspondence, reports of job conferences, Shop Drawings and Samples, reproductions of original Contract Documents including all Addenda, Change Orders, RFIs, additional Drawings issued subsequent to the execution of the Contract, ENGINEER's clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing submittals received from and delivered to Contractor and other Project related documents. b. Prepare a daily report and keep a diary or log book, recording Contractor's hours on the job • site, weather conditions, data relative to questions of Work Change Directives, Change Page 12 of 18 pages (Exhibit A — Engineer's Services) Orders or changed conditions, list of job site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test ® procedures; and send copies to ENGINEER. Daily reports are to be signed by the Contractor and the Lead Inspector or Area Manager. c. Record names, addresses and telephone numbers of all Contractors, subcontractors and major suppliers of materials and equipment, provide the information to the OWNER and provide updates if such information changes. 9. Reports: a. Furnish to ENGINEER monthly reports as required of progress of the Work and of Contractor's compliance with the progress schedule and schedule of Shop Drawing and Sample submittals. b. Consult with ENGINEER and OWNER in advance of scheduled major tests, inspections or start of important phases of the Work. c. ENGINEER draft proposed Change Orders and Work Change Directives, obtaining backup material from Contractor and recommend to ENGINEER Change Orders, Work Change Directives, and RFIs. d. Report immediately to ENGINEER and OWNER the occurrence of any accident. 10. Payment Requests: Review Applications for Payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to ENGINEER, noting particularly the relationship of the payment requested to the schedule of values, Work completed and materials and equipment delivered at the site but not incorporated in the Work. 11. Certificates, Maintenance and Operation Manuals: During the course of the Work, verify that certificates, maintenance and operation manuals and other data required to be assembled and furnished by Contractor are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to ENGINEER for review and forwarding to OWNER as required in the Contract Documents. 12. Completion: a. Before ENGINEER issues a Certificate of Substantial Completion, coordinate with the Contractor to prepare a list of observed items requiring completion or correction. b. Observe whether Contractor has had performed inspections required by laws, rules, regulations, ordinances, codes, or orders applicable to the work, including but not limited to those to be performed by public agencies having jurisdiction over the work. c. Conduct a final inspection in the company of ENGINEER, OWNER and Contractor and prepare a final list of items to be completed or corrected. d. Observe whether all items on final list have been completed or corrected and make recommendations to ENGINEER concerning acceptance and issuance of the Final Completion Certificate. C. Limitations of Authority by RPR I. Shall not authorize any deviation from the Contract Documents or substitution of materials or ® equipment (including "or- equal" items), unless authorized by ENGINEER and OWNER. Page 13 of 18 pages (Exhibit A — Engineer's Services) 2. Shall not exceed limitations of ENGINEER's authority as set forth in the Agreement or the Contract Documents. ® 3. Shall not undertake any of the responsibilities of Contractor, Subcontractors, Suppliers, or Contractor's superintendent. • 4. Shall not advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of construction unless such advice or directions are specifically required by the Contract Documents. 5. Shall not advise on, issue directions regarding or assume control over safety precautions and programs in connection with the Work. 6. Shall not accept Shop Drawing or Sample submittals from anyone other than Contractor. 7. Shall not authorize OWNER to occupy the Project in whole or in part. 8. Shall not participate in specialized field or laboratory tests or inspections conducted by others except as specifically authorized by ENGINEER. A2.06 Post - Construction Phase A. Upon written authorization from OWNER, ENGINEER, during the Post - Construction Phase, shall: I . Provide assistance in connection with the testing and adjusting of Project equipment or systems. 2. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems. 3. Assist OWNER in developing procedures for control of the operation and maintenance of, and record keeping for Project equipment and systems. 4. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist OWNER in consultations and discussions with Contractor concerning correction of any such defects, and make recommendations as to replacement or correction of Defective Work, if present. 5. 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. A2.07 TWDB Tier II Funding. The Phases identified correspond to the TWDB's Tier I1 funding requirements. A. Application Phase. Provide services related to the Loan Application Phase, which consists of two major parts, the Financial Application and the Engineering Application. Components of this Phase include: I. Financial Application. ENGINEER shall provide preparation, development, submittal and agency coordination of the Financial Application as necessary. 2. Engineering Application. ENGINEER shall provide preparation, development, submittal and agency coordination of the Engineering Application as necessary. The Engineering Application consists of the following components: Page 14 of 18 pages (Exhibit A — Engineer's Services) a. Preliminary Engineering Feasibility Report (PEFR) ® b. Environmental Information Document (effort for this task addressed in Task 6, paragraph E.3) c. Draft Water Conservation Plan d. A discussion of any known permitting, social or environmental issues that may effect the implementation of the proposed project e. Estimated project cost; construction and non - construction f. Contract for Engineering Services g. Additional information as may be required by TWDB B. Planning Phase. ENGINEER shall provide services related to the Planning Phase, which consists of preparation of Loan Closing, Engineering Feasibility Report (EFR), Environmental Assessment (EA), and initial work required to obtain the site, easements and necessary permits. Components of this Phase include: 1. Loan Closing and Release of Funds for Planning a. Provide services to prepare, develop, submit and coordinate the Loan Closing with TWDB as necessary which may include the following components: b. Legal and fiscal information C. Bond counsel information d. Approved Water Conservation Plan and adopted ordinance C. Contracts which Owner purchases or sells water or sewage services f. A Sufficiency of Funds Statement g. Evidence of compliance with all loan closing requirements 2. Engineering Feasibility Report (EFR) 3. Environmental Assessment (EA); effort for this task addressed in Task 6, paragraph E.3. 4. Permits, Land Acquisition, Right -of -Way and Easements. Owner shall be responsible for costs related to permits, land acquisitions, right -of -ways and easements. C. Design Phase. ENGINEER shall provide services related to the Design Phase, which consists of Release of Funds for Design, final modifications (if necessary) to the EFR and preparation of the plans and specifications. Acquisition of the site and easements and issuance of all permits should also be completed. Components of this Phase include: 1. Release of Funds for Design 2. TWDB approved EFR • 3. TWDB approved EA. Page 15 of 18 pages (Exhibit A — Engineer's Services) 4. Engineering contract for design phase services. 5. Update /status of design schedule and budget. 6. Depending on the project, obtaining applicable pert-nits that may be required before design funds are released. 7. Design Phase Submittals a. Site map showing Sanitary Control Easements, if applicable. b. Purchase or lease agreements for land required for the project. C. Complete plans and specifications. d. Geotechnical report. e. Site Certificate signed by the Owner's representative. f Plans and Specifications per TWDB guidelines. PART 3 — ADDITIONAL SERVICES A3.01 Additional Services Requiring OWNER's Authorizalion in Advance A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. (Modified) Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction to approve all phases of the PROJECT designed or specified by ENGINEER. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in size, OWNER's schedule, or character of construction; and revising previously accepted studies; reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement. 4. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions beyond those identified in paragraph A1.0I.A.4. 5. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to Section 6.01.E of the Agreement. ® 6. Providing renderings or models for OWNER's use. Page 16 of 18 pages (Exhibit A — Engineer's Services) 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, • maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by OWNER. 8. Furnishing services of ENGINEER's Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in paragraphs A1.03.0 and A2.0 1.C. 10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's office. ll. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructability review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current Laws and Regulations. 13. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the same). 14. Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.01.15 of the Agreement. 15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. 16. Property descriptions. 17. (Modified) Property, easement, right -of -way, and other special surveys or data, including establishing relevant reference points. I& (Added) Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by fire or other cause during construction, or (4) acceleration of the progress schedule involving services beyond normal working hours. 20. Warranty Period Services. Engineer will consult with the Owner's plant and engineering staff on a monthly basis, for a period not to exceed 12 months from the date of final acceptance by City Council, to review outstanding issues, problems with plant and related matters, and advise on possible solutions and actions to be undertaken by the Owner. 21. Electronic O&M Manual. To be provided by the Contractor (by others); include in specifications for Contractor to provide. The specifications will require the Contractor to provide electronic and two bound hard copies of the Operations and Maintenance (0 &M) manual will be provided for the facilities at the WDWWTP. Electronic copy shall be in a fornmat acceptable to the Owner Page 17 of 18 pages (Exhibit A — Engineer's Services) 22. Surveying. Engineer will perform design topographical surveying for the treatment plant site, outfall area, effluent force main from pump station (if required), and lay down area. A digital copy shall be 4D submitted in DXF, DWG, or DGN format containing state plane coordinates south central zone based on NAD 83 and elevations based on Geoid99 NAVD88 referenced to a Owner established monument utilizing survey grade (RTK) procedures (Reference Section 126 -188 Engineering Report of the Code of Ordinances). 23. Geotechnical Investigation. Engineer will conduct geotechnical investigation for design of the plant facilities. 24. Environmental Services. 1. Engineer will provide environmental services as mutually agreed by the Owner. 2. Phase 1 services will include an environmental site assessment and a wetlands assessment that will be required by review agencies (i.e. Corps of Engineers, HCFCD, TCEQ). Phase 11 environmental services will be conducted.only if justified,based on Phase I results and as required by review agencies for various permitting and funding applications. Specific elements of a Phase It will be identified as part of the Phase I recommendations (i.e. further investigation of a finding in Phase I services, historical assessment, information required for EID, EA, etc.); therefore, an estimated effort will be included as an allowance. The Engineer provides a budget which will be considered an allowance if the work is required; the actual effort will be dependent upon the specific requirements. Any amount exceeding this allowance will be compensated by the Owner. 25. Construction Materials Testing. Engineer will provide construction materials testing as required during construction. Testing will consist of concrete, soil, road base, asphalt, and other required tests. The Engineer will provide a budget which will be considered an allowance if the work is required; the actual effort will be dependent upon the specific requirements. Any amount exceeding this allowance will be compensated by the Owner. 26 Conceptual Plan for a 12 MGD W WTP. Engineer will provide a conceptual plan for a 12 MGD facility. This plan will include site requirements for the expansion to assist the Owner in long -range planning. A3.02 Required Additional Services (Deleted). • Page 18 of 18 pages (Exhibit A — Engineer's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER • for Professional Services dated Initial: OWNER ENGINEER OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and, when applicable, both furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. (Modified) Following ENGINEER's assessment of initially - available Project information and data and upon ENGINEER's written request, furnish or otherwise make available such additional available Project related information and data as is reasonably required to enable ENGINEER to complete its Basic and any Additional Services authorized or required. 1. (Deleted). 2. (Deleted). 3. (Deleted). 4. (Deleted). 5. (Deleted). 6. (Deleted). D. (Deleted). E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as the OWNER determines is necessary. F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as required for ENGINEER to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. ® H. (Deleted). Page 1 of 2 pages Pages (Exhibit B - OWNER's Responsibilities) 1. (Deleted). isJ. 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 constructability 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 ENGfNEER'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 EXHI-BIT C, consisting of 3 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated 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: I. (Modified) A total cost for Basic Services and Contingent Basic Services shall not exceed amount of S 1,538,965, 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 and acceptance of ENGINEER's services. The compensation specified hereinabove shall not exceed the following for each portion of the Project based upon Engineer's Direct Labor Costs times a factor of 3.25: Basic Services Permit Modification S 38,012 WWTP Prelim. Design 208,237 WWTP Final Design 115,417 WWTP Const. Phase Engr. 0 Upsizing of Expansion 53,784 Exist. Facility Design Complex 42,229 Effluent PS & FM Prelim Design 53,395 Effluent PS & FM Final Design 29,350 Eff PS & FM Const. Phase Engr. 0 Resident Engineering — CM/Eng Support 0 Resident Engineering — Field Reps 0 TWDB Tier II Funding 15,846 � . 1 Initial: OWNER ENGINEER b. Contingent Bask _Services Permit Modification 0 WWTP Prelim. Design 0 WWTP Final Design 269,308 WWTP Const. Phase Engr. 156,804 Upsizing of Expansion 53,784 Exist. Facility Design Complex 42,229 Effluent PS & FM Prelim Design 0 Effluent PS & FM Final Design 68,485 Eff PS & FM Const. Phsae Engr. 26,683 Resident Eng — CM /Eng Support 63,960 Resident Eng — Field Reps 297,382 TWDB Tier II Funding 4,060 3.2. (Delete): 3. The cost not to exceed includes compensation for ENGINEER's services and services of ENGINEER's Consultants (with the exception of those outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, overhead, profit, and Reimbursable Expenses. 4. Deleted. 5. The portion of the amount billed for ENGINEER's services will be based upon total services actually completed during the billing period. C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor Method of Payment A. (Not Used). ® Page 1 of 3 pages (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method) �J • C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. General. For services of ENGINEER's employees engaged directly on the Project pursuant to paragraph A3.01 of Exhibit A of the Agreement, except for services as a consultant or witness under paragraph A3.01.A.13, an amount equal to ENGINEER's Direct Labor Costs times a Factor of 3.25 plus Reimbursable Expenses subject to paragraph C4.04 and ENGINEER's Consultant's charges, if any. Additional Services shall not be provided without the prior written consent of the Owner. 2. Additional services, including any ENGINEER's Consultant's changes as provided for in C4.05, shall not exceed the following for each phase of the Project: Additional Services associated with Basic Services $170,059 Additional Services associated with Contingent Basic Services $100,736 C4.04 For Reimbursable Expenses A. (Modified) When not included in compensation for Basic Services, Contingent Basic Services or Additional Services under paragraph C4.01 and C4.03, OWNER shall pay ENGINEER for Reimbursable Expenses at the rate set forth in Appendix C -2. 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 the following for the Project: Basic Services $21,424 Contingent Basic Services $51,197 Additional Services associated with Basic Services $5,102 Additional Services associated with Contingent Basic Services $3,022 B. (Modified) Reimbursable Expenses include the following categories: mileage, parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project - related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Project - related internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of 1_l. 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 for additional services 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 I.I. The consultant charges including the factor are subject to the not -to- exceed amounts stated in C4.03. C4.06 Direct Labor Costs A. Direct Labor Costs means salaries and wages paid to ENGINEER's employees but does not include payroll related costs or benefits. B. (Modified). For purposes of this Agreement, Direct Labor Costs shall be those rates specified on the schedule which is attached hereto as Appendix C -1 and incorporated herein for all intents and purposes. 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. Page 2 of 3 Pages (Exhibit C - Ali Other Services /Charges -- Cost not to Exceed Method of Payment) 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. C] C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for ENGINEER's services which are identified in paragraphs C4.01 and C4.03, will be based on the Direct Labor Costs for the cumulative hours charged to the Project during the billing period by all of ENGINEER's employees, times the Applicable Direct Labor Costs Factor, plus Reimbursable Expenses and ENGINEER'S Consultant's charges, if any. Page 3 of 3 Pages {Exhibit C - All Other Services /Charges -- Cost not to Exceed Method of Payment} Appendix C -1 DIRECT LABOR COSTS RATESCHEDULE EMPLOYEE DIRECT LABOR CLASSIFICATION HOURLY RATE Principal $36.00 to $50.00 Project Manager $28.50 to $43.00 Technical Manager $32.00 to $45.00 Senior Engineer $32.00 to $45.00 Project Engineer $27.25 to $36.00 Associate /Staff Engineer $24.75 to $32.00 Graduate Engineer $18.75 to $27.50 Field Engineer $28.70 to $39.00 Field Representative II $18.75 to $32.00 Field Representative I $15.25 to $25.75 Sr. CADD Designer II $24.50 to $38.00 CARD Designer I $18.75 to $31.50 CADD Operator II $17.85 to $29.25 CADD Operator I $15.00 to $26.00 Administration $14.00 to $25.00 Word Processor $10.50 to $18.25 Clerical $10.00 to $16.25 Page Solo (Appendix C -1 - Direct Labor Costs Rate Schedule) • Appendix C -2 REIMBURSABLE EXPENSES RATE SCHEDULE DESCRIPTION RATE Reprographics a. S %2" x 11" $0.10 per each b. 11" x 17" $0.15 per each c. 24" x 36" $1.25 per each d. Bid Packages Cost plus 10% e. Outside Reproduction Cost plus 10% Mileage $0.36 per mile Delivery, Courier Cost plus 10% Other expenses Cost plus 10% Page Solo (Appendix C -2 — Reimbursable Expense Rate Schedule) This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 h1SUrance Throughout the tern 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: $2,000,000 Products & Completed Operations: $2,000,000 Personal & Advertising Injury: $2,000,000 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 &0) Limit: $2,000,000 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 made available for inspection to City of Baytown's representative. Page 2 of 2 Pages (Exhibit G - Insurance) • This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREINAFTER WHETHER SINGULAR OR PLURAL 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 EXHIBIT K SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. Page 1 of 2 Pages (Exhibit K - Indemnification) • By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity. ENGINEER assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and /or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with ENGINEER's work to be performed hereunder. This release shall apply with respect to ENGINEER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. As used in this Exhibit K, an agent of the City shall mean and include a member of a board or commission of the City and such other persons or entities authorized to act on behalf of the City. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Furthermore, the provisions contained in this Exhibit "K" shall survive the termination and /or expiration of this Agreement. Page 2 of 2 Pages (Exhibit K - Indemnification)