Ordinance No. 10,459ORDINANCE N(). 10,459
AN ORDP\AN(l- 01,1'H F. C'ITYC'U-:N(-]L 01,TTIE (ATY (.*'BAY7'MVN,TEXAS,
APPRWIHNIG PROFFSSIONIU. SFRVK'I-,'S A(JR[-J,,MENl' \VITH LANGF'ORD
FNGIN['-",FR,l'NG, M.,- WR Pk[-,,'LVVlINARY i\jN,`D Fl,`,,AL
SFRVl(-'T, SS0ClA'FF`D WITH THE 1404001 MAINAH-10 UTHATY PROJEC'V,
AUTHORIZING FUNDS IN A TC)"FAL /V%/I()UNT NOT TO EXCEH�D FlV[-,'
FlUNDRIA) FIFTY.-SEVEN '11K)USAND FORT WIAVO ANM 25/100 DOI-LARS
CS517Y4125Y MAINNU3 cynn, 1110VISMS RELATED ThERETO; AND
PROVIDINK3 F(ARTIM L,`FJ`E(7'FJVE DATITI]FREOF,
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130 IT ORDAINED BY 111E� C11 OF TTIF 0"I"Y OF IAA VT(MXTEXAS�
SeMon 1: Thai the ciry couned of to ciq or Baymn Tuxaq hemby appmus ,i
ProWsimnal Sem ices Agreemem Wh Engirwering, Inc, Or prehn,intury and final engincering,
desil'ol Services associated v,,nh the North ✓ain/11-1-M 1AHily Prqjecl, A copy of said agreen-ient is
amached herelo. minted Exhibb Yq" and mmle as pan humW W nH Ma" and puposes.
Sacdon 2: Th�,fl the ('ity, ('ouncil of the City of' Haytown aarthmizes 10nds payable to
Langford I-'ngineerjng, Inc. in an amoma not to exceed HVE MANDRED FIFTY -SEWN THMSAM
F()RTY-11VO AM) 29100 DOLLARS (S557,,042.25) Or prolssAnal ser0ces in accordance vvidi the
in Sec0c'ln I hereot"
Sedion 3: "Amt le (10 Ntumga is hm&y gmmed genend Wed, to apme a deaeme
or om inucase in costs byTWENTY-F[VF TI-lCHJSAN`J) AND N()/1010 L)()LLAf,,S, ($25,000.00) or less.
provpded th"'n the arnount authorized in S"Wri 3 hereof may rim be increased by more tharl twenty-6vo
pemmil (2511).
Seciion 4: This ordinance shall We Met fhmn and aller Wn (10) days From its juissage
[-,r 'y lhe city ("ounciL
INTR0[)LJ(,'ED, READ and PASSEL) by the afAnnadve Mc of the qjfly ('Otulcd orlhe City of
Baviown i Ns the 23"d day of0ctober, 2006,
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STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of
Between
The City of Ba-
ytown (- C3NVNER ")
and
Langford Engineering, Inc. ( "ENGINEER")
( "Effective Date ").
C>WNER intends to construct the Proposed North Main/11-1-10 Utility Project (the "Project "). The Project consists
of two phases. The first phase of the Project will provide for sanitary sewer services on North Main Street, north of I-
10 to Wallisville Road. and a general benefit lift station along the North I -10 feeder road, cast ofNorth Main Street.
The second phase of the Project will provide for sanitary sewer services along North Main Street, south of 1- 1 O to
Lynchburg -Cedar Bayou Road, and will include the installation ofa 12 -inch water line along North Main Street from I-
] O south to Lynchburg—Cedar Bayou Road. Engineer will perform the preliminary design and linal design services for
both phases simultaneously. The bidding phase, construction phase. and post - construction services for the two phases
of the Project will be performed separately for each Project phase with priority given to the first phase of the Project_
(]OWNER and ENGI\ EF-R in consideration oftheir mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of 12
E)MMU A
TABLE OF CONTENTS Paee
ARTICLEI - SERVICES OF ENGINEER .......................................................................................... ..............................3
1.01 Scope .................................................................................................................................... ..............................3
ARTICLE2 - OWNER'S RESPONSIBILITIES ................................................................................... ..............................3
2.01 General ................................................................................................................................. ..............................3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ........................................................................ ..............................3
3.01 General ................................................................................................................................. ..............................3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE4 - PAYMENTS TO ENGINEER ........................................................................................ ..............................3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............... ..............................3
4.02 Other Provisions Concerning Payments .............................................................................. ..............................3
ARTICLE5 - OPINIONS OF COST ..................................................................................................... ..............................4
5.01 Opinions of Probable Construction Cost ............................................................................ ..............................4
5.02 Designing to Construction Cost Limit ................................................................................ ..............................4
5.03 Opinions of Total Project Costs ......................................................................................... ..............................4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................... ..............................4
6.01 Standards of Performance .................................................................................................... ..............................4
6.02 Authorized Project Representatives .................................................................................... ..............................5
6.03 Design without Construction Phase Services ...................................................................... ..............................5
6.04 Use of Documents ................................................................................................................ ..............................5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination .......................................................................................................................... ..............................6
6.07 Controlling L a NN ................................................................................................................... ............................... 7
6.08 Successors, Assigns, and Beneficiaries ............................................................................... ..............................7
6.09 Dispute Resolution ............................................................................................................... ..............................7
6.10 Hazardous Environmental Condit ion .................................................................................. ..............................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 I leadittgs .............................................................................................................................. ..............................8
ARTICLE7 - DEFINITIONS ................................................................................................................ ..............................8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECI_AL PROVISIONS ................................................................. ..............................1 1
8.01 Exhibits Included .............................................................................................................. ............................... 11
8.02 Total Agreement ............................................................................................................... ............................... I 1
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. If authorized by OWNER, ENGINEER shall
furnish Resident Project Representative(s) with duties,
responsibilities and limitations of authority as set forth in
Exhibit D.
ARTICLE 2 - OWNER'S RESi'ONSIBILITIES
2.01 General
A. ONVINER shall have the responsibilities set forth
herein and in Exhibit B.
AR'T'ICLE 3 - TiNIES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and
compensation under this Agreement have been agreed to for
the design of the Project. ENGINEER's obligation to render
services hereunder will be for whatever period necessary for
the final completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Modified) If OWNER fails within a reasonable
period of time to give written authorization to proceed with
any phase of services after completion of the immediately
preceding phase, or if OWNER delays ENGINEER's
services, ENGINEER may, after giving seven days written
notice to OWNER, suspend services under this Agreement. if
during such seven -day period, OWNER gives written
authorization to proceed or ENGINEER'S services are no
longer delayed by OWNER, ENGINEER may not suspend
services under this Ag*reernent.
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, ENGINEER shall
be entitled to equitable adjustment of rates and amounts of
compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
connection with, among other things, such delay or
suspension and reactivation and the fact that the time for
performance under this Agreement has been revised.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A. Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable E.alrenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. ENGINEER shall supply detailed
back -up information along with each invoice in order for the
OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
Exhibit C.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and
backup documentation therefor, the amounts due ENGINEER
will be increased at the rate of 1.0% per month (or the
maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days written
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. However, it is
expressly understood and agreed that ENGINEER will not
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and withheld in
accordance with paragraph 3.02.0 and that ENGINEER will
not suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
payments will be credited first to principal and then to
interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
1). Pgvments 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. (tNIodiiied) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. However,
since ENGINEER has no control over the cost of labor,
materials, equipment, or services furnished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids. or actual
Construction Cost will not vary from opinions of probable
Constnuction Cost prepared by ENGINEER. if OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. If a Construction Cost limit is established between
OWNER and ENGINEER, such Construction Cost limit and
a statement of ENGINEER's rights and responsibilities with
respect thereto will be specifically set forth in Exhibit F,
"Construction Cost Limit," to this Agreement. (Exhibit F is
not used).
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the
accuracy of opinions of Total Project Costs.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 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- fuurnished information upon which ENGINEER is
authorized to rely as provided in Section 6,01.E.
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. ENGINEER
may employ such ENGINEER's Consultants as ENGINEER
deems necessary to assist in the performance or furnishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER- mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGiNEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement. unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports. data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work." or of any other notice or certification
that ENGLNEER will be requested to provide to OWNER or
third parties in connection with the Project. OWNER and
ENGINEER shall reach agreement on the teens 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.
11. (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.
1. 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 f'or 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 die Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor(s). subcontractor or
supplier, or of any of the Contractor's agents or employees or
any other persons (except ENGINEER's own employees and
its consultants for which it is legally liable) at the Site or
otherwise furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
pay.
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction Phase
services with either OWNER's representatives or a third
party, ENGINEER's Basic Services under this Agreement
will be considered to be completed upon completion of the
Final Design Phase or Bidding or Negotiating Phase as
outlined in Exhibit A.
B. It is understood and agreed that if ENGINEER's
Basic Services under this Agreement do not include Project
observation, or review of the Contractor's performance, or
any other Construction Phase services, and that such services
will be provided by OWNER, then OWNER assumes all
responsibility for interpretation of the Contract Documents
and for construction observation or re-6ew and waives any
claims against the ENGINEER that may be in any way
connected thereto.
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
the instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any tennination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service: provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGiNEER's name
and all references to the ENGINEER, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the ENGINEER,
its officers, and employees and sub- consultants, as well as
their successors and assigns.
B. (Modified) Copies of OWNER- 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 conununicated 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 tiles will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to ONNINER 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 patty
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60 -day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -term
compatibility, usability. or readability of documents resulting
from the use of software application packages, operating
systems. or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
reuse of the Documents.
G. if there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than those specified in Exhibit G. if
so requested by OWNER, with the concurrence of
ENGINEER, and if commercially available, ENGINEER
shall obtain and shall require ENGINEER's Consultants to
obtain such additional insurance coverage, different limits, or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
b, By ENGINEER upon seven days written
notice if ENGINEER is being requested by
OWNER to fitrnish 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
die partners, successors. executors, administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.6 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 assigtr.
sublet, or transfer any rights under or interest (including. but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
B. (Modified) OWNER has disclosed to die 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 1 lazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition: and (ii) warrants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," "operator;' "generator," or "transporter" of
hazardous substances. as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
the Site in connection with ENGINEER's activities under this
Agreement. ARTICLE 7 - DEFINITIONS
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 sig*nattire 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 «'giver
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.
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 Fonts 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 fitrnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Biel- -The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed_
8. Bidding Docwnents- -The advertisement or
invitation to Bid, instructions to bidders. the Bid form
and attachments. the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
9. Change Order - -A document recommended by
6.16 Headings ENGINEER, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
A. The headings used in this Agreement are for general the Work, or an adjustment in the Contract Price or the
reference only and do not have special significance.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
Contract Times, issued on or after the Effective Date of
the Construction Agreement.
10. Contstnnction Agreement- -The written
instrument which is evidence of the agreement, contained
in the Contract Documents. between OWNER and
Contractor covering the Work.
11. Co nstntction Contract- -The entire and
integrated written agreement between the O\'VNER 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 O%VNER
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 Chance Directives, Field Orders, and
ENGINEER's written interpretations and clarifications
issued on or after the Effective Date of the Construcdon
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 Tintes- -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 Constnlction Agreement- -
The date indicated in the Construction Agreement on
which it becomes effective, but if no such date is
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
22. Effective Date of the Agreement- -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants--individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
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
furnished by Contractor with respect to the Project.
27. Hazardous Environmental Condition- -The
presence at the Site of Asbestos, PCB's, Petroleum,
Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
28. Hazardous Waste- -The tern 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 Regtdatio+ts--
Any and all applicable laws, rules, regulations,
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies. authorities, and courts
having jurisdiction.
30. PCB's -- Polychlorinated biphenyls.
31. Petroleum- -Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline,
kerosene, and oil mixed with other non - Hazardous Waste
and crude oils.
32. Radioactive Materials -- Source, special nuclear,
or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.
33. Record Drawings- -The Drawings as issued for
construction on which the ENGINEER, upon completion
of the Work, has shown changes due to Addenda or
Change Orders and other information which ENGINEER
considers significant based on record documents
furnished by Contractor to ENGINEER and which were
annotated by Contractor to show changes made during
construction.
34. Reimbursable Expenses--The expenses incurred
directly by ENGINEER in connection with the
performing or famishing 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 tern
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. Speeifteations- -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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
40. Substantial Completion- -The time at which the
Work (or a specified part thereof) has progressed to the point
where, in the opinion of ENGINEER, the Work (or a
specified part thereof) is sufficiently complete, in accordance
with the Contract Documents. so that the Work (or a specified
part thereof) can be utilized for the purposes for which it is
intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work
refer to Substantial Completion thereof.
4l. 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. ff'ork- -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 burnishing, installing. and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44. JVork 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 perfonned 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 .imenclnient - -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
eight (8) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2') pages.
C. Exhibit C, "Payments to Engineer for Services and
Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D. "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, - is not used.
E. Exhibit E. "Notice of Acceptability of Work,"
consisting of two (2) pages.
F. Exhibit F. "Construction Cost Limit," is not used.
G. Exhibit G. "Insurance" consisting of two (2) pages.
1 -I. Exhibit H, "Dispute Resolution," is not used.
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):
Jarle (Joe) Lysengen, E.I.T.
Title: Acting Director of Engineering
Phone Number: (281) 420 -6546
Facsimile Number: (281) 420 -6586
E -Mail Address: joe.lysengen @baytown.org
ENGINEER:
Timothy B. Hardin, P.E.
Title Principal
Date Signed
Address for giving notices:
1080 W. SAM HOUSTON PKWY N., SUITE 200
HOUSTON. TX 77043 -5014
Designated Representative (paragraph 6.02.A):
Timothy B. Hardin, P.E.
Title: Vice President
Phone Number:713461 -3530
Facsimile Number.713 -932 -7505
E- MailAddress:titnh @Langford- engincering.net
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 8 pages, referred to in and
part of the Agreement between ONYNER 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 asset forth below.
PART 1 -- BASIC SERVICES (Modified)
A1.01 Preliminaty Design Phase
A. For both phases of the Project, ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNTER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER: and. after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards and /or commissions to
receive input into OWNER'S requirements for the Project and evaluation potential solutions available
to OWNER.
6. (tiiodified) Prepare separate preliminary engineering reports for each phase of the Project (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. These Reports will be accompanied by ENGINE ER's opinion of Total Project Costs for
each solution which is so recommended for the each phase of the Project with each component
separately itemized, including the following, which will be separately itemized: opinion of probable
Construction Cost, allowances for contingencies and for the estimated total costs of design,
professional, and related services provided by ENGINEER and, on the basis of information furnished
by OWNER, allowances for other items and services included within the definition of Total Project
Costs.
7. Furnish three (3) review copies of each Report to OWNER within ninety -eight (98) days of
authorization to begin services and review it with OWNER.
8. Revise the Reports in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Reports to the OWNER within twenty (20) days after completion of
reviewing it with OWNER.
Page 1 of 8 pages
(Exhibit A — Engineer's Services)
B. (Modified) ENGINEER's services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the revised Reports have been delivered to and accepted by OWNER.
A 1.02 Final Design Phase
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinions 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 for both phases of the Project,:
I . (Modified) On the basis of the above acceptance. direction, and authorization, prepare final Drawings
indicating the scope, extent, and character of the Work to be perfonmed 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 as needed for the OWNER to file
applications for pennits from or to obtain approvals of governmental authorities having jurisdiction to
review or approve the final design of the Project and assist OWNER in consultations, if any, with
appropriate authorities.
3. Advise OWNER of any adjustments to the opinions of probable Construction Cost and any adjustments
to Total Project Costs known to ENGINEER, itemized as provided in paragraph A1.0I.A.6.
4. 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. ENGINEER
will prepare two separate Bidding Documents for the Project.
5. Submit 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within eighty-four (84) days after authorization to proceed with this phase.
6. (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/thcse request(s) is made prior to the preparation of the final bid documents.
13. 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 two (2) — one for each phase of the Project.
D. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A I.03.A.5 have been delivered to and accepted by OWNER.
A1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinions of probable
Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to
proceed, ENGINEER shall for each phase of the Project:
Page 2 of 8 pages
(Exhibit A — Engineer's Services)
I . Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and. where
applicable, provide 15 sets of plans and specifications, and maintain a record of prospective bidders to
whom Bidding Documents have been issued.
2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. (Modified) Attend the 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.
6. (Added) Receive and process Contractor deposits or charges for the Bidding Documents.
7. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for constriction.
materials, equipment, or services.
13. (Modified) The Bidding or Negotiating Phase for each phase of the Project will be considered complete upon
commencement of the Construction Phase.
A 1.04 Constr•ttction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall for each phase of the Project:
General Administration of Const,•ttction Contract. Consult with OR'NER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree in %vriting. All of OWNER's instructions to
Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (i'Vioditied) Selecting Independent Testing Laboratoi-j% Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01.0, if any.
3. Pre- Consnvetion Coherence. Participate in a Pre - Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchtnarkv. 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 Consn-uction. 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
Page 3 of 8 pages
(Exhibit A — Engineer's Services)
professional judgment as assisted by the Resident Project Representative, if any. Based on
infornhation obtained during such visits and such observations. ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER
shall keep OWNER informed of the progress of the Work.
(Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative, if any, at the Site, will be to enable ENGINEER to better 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.
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 Il'ork Charge Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or -equal. " Evaluate and determine the acceptability of substitute or "or- equal"
materials and equipment proposed by Contractor. but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
Page 4 of 8 pages
(Exhibit A — Engineer's Services)
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 benveen 011WER 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 A1.04.A.5.b and other express or
general limitations in this Agreement and elsewhere.
b. By recommending any payment. ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as
it is performed and furnished have been exhaustive. extended to every aspect of Contractor's
work in progress, or involved detailed inspections of the Work beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither
ENGINEER's review of Contractors work for the purposes of reconuuending 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 detennine 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 pro,6ded by Contractor, and deliver three (3) copies of the same
to OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously
submitted and required by the Contract Documents, certificates of inspection, tests and
approvals, Shop Drawings, Samples and other data approved as provided under paragraph
A1.04.A.9, and the annotated record documents which are to be assembled by Contractor in
Page 5 of 8 pages
(Exhibit A — Engineer's Services)
accordance with the Contract Documents to obtain final payment. The extent of such
ENGINEER's review will be limited as provided in paragraph A1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of
documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings on tnylar showing appropriate
record information based on Project annotated record documents received from Contractor.
15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work
ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine
if the Work is Substantially Complete. If after considering any objections of OWNER. ENGINEER
considers the Work Substantially Complete. ENGINEER shall deliver a certificate of Substantial
Completion to OWNER and Contractor.
16. (Modified) Final Notice of Acceptabilit►. 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 Constntction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
A 1.05 Post- Constniction Phase
A. Upon written authori-ration from OWNER. ENGINEER. during the Post - Construction Phase. shall for each
phase of the Project:
1. Provide assistance in connection with the testing and adjusting of Project equipment or systems.
2. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems.
3. Assist OWNER in developing procedures for control of the operation and maintenance of. and record
keeping for Project equipment and systems.
4. Provide Operations and Maintenance Manuals to the OWNER as well as electronic as -built drawings for
the completed Project. in a format acceptable to the OWNER.
5. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist OWNER in
consultations and discussions with Contractor concerning correction of any such defects, and make
recommendations as to replacement or correction of Defective Work, if present.
7. In company with OWNER or OWNER's representative, provide an inspection of the Project within one
month before the end of the Correction Period to ascertain whether any portion of the Work is subject to
correction.
Page 6 of 8 pages
(Exhibit A — Engineer's Services)
B. The Post - Construction Phase services may commence during the Construction Phase and, if not otherwise
modified in this Exhibit A, will terminate at the end of the Correction Period.
PART 2 -- ADDITIONAL SERVICES
A2.01 :Idditional Services Requiring OWNER's Authorization in Advance
A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of
the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement.
1. (Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants. loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements: review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER.
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information furnished by OWNER.
3. (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including. but not limited to,
changes in size, OWNER's schedule, or character of construction: and revising previously accepted
studies, reports, Drawings, Specifications. or Contract Documents when such revisions are required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
4. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A1.0f.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.EA of the Agreement.
6. Providing renderings or models for ORTTER's use.
7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating
processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity
surveys of materials, equipment, and labor: and audits or inventories required in connection with
construction performed by OWNER.
8. Furnishing services of ENGINEER'S Consultants for other than Basic Services.
9. Services attributable to more prime construction contracts than specified in paragraph A 1.03.C.
10. Services during out -ot -town travel required of ENGINEER other than for visits to the Site or OWNER's
office.
11. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value engineering, and constructibility review requested by OWNER; and performing or furnishing
Page 7 of 8 pages
(Exhibit A — Engineer's Services)
services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a
result of such review processes.
12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
13. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation.
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
14. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement.
16. Property descriptions.
17. (Modified) Property, easement, right -of -way, and other special surveys or data, including
establishing relevant reference points.
18. (Added) Environmental assessments, audits. investigations and impact statements, and other relevant
environmental or cultural studies as to the Project, the Site, and adjacent areas.
19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged
by fire or other cause during construction, or (4) acceleration of the progress schedule involving services
beyond normal working hours.
A2.02 Required Additional Services
A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from
OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing
prior to starting any such Additional Services.
1. (Deleted)
2. (Deleted)
3. (Deleted)
4. ( Deleted)
5. (Deleted)
6. (Deleted)
Page 8 of 8 pages
(Exhibit A — Engineer's Services)
This is EXHIBIT 13, consisting of 2 pages. referred to in and
part of the Agreement between ONANER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ONE NER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement. OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements. flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER %will require to be included in the Drawings and Specifications: and Furiish 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. (IN4odified) Following ENGINEER's assessment of initially - available Project information and data and upon
ENGINEER's written request, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. ( Deleted).
6. (Deleted).
D. (Deleted).
E. (ivtodifed) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A ol' 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.
II. (Deleted).
Page 1 of 2 pages
(Exhibit B - OWNER's Responsibilities)
1. (Deleted).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating. project
peer review, value engineering, and constructibility review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition
to, ENGINEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties. responsibilities, and authority of ENGINEER.
M. Attend the pre -bid conference, bid opening, pre - construction conferences, construction progress and other job
related meetings, and Substantial Completion and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNER's on -site representative to ENGINEER
during construction phase.
Page 2 of 2 pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C. consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and incorporated in the cost not to exceed to account
supplemented to include the following agreement of for labor, overhead. profit, and Reimbursable
the parties: Expenses.
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having .4 Determined
Scope —Cost not to Exceed ;tlethod of
Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
L (Modified) A cost not to exceed
amount of S427,042.25 for both phase of the
Project based upon the rate schedule, which is
attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes,
which amount does not include those Engineer's
Consultant's charges as provided below in this
Article 4. Subparagraph C4.05, to be distributed
at the completion of each of the phase in the
following amount:
a. Preliminary Design Phase S 59,332.65
b. Final Design Phase S 249,806.60
c. Bidding and Negotiating Phase S 24,527.80
d. Construction Phase S 83,448.60
e. Post Construction Phase S 9,926.60
3.2. (Modified) ENGINEER may with the
consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by
the OWNER.
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
dlethod of Payment
A. (Not Used).
C4.03 For Additional Sets ices
A. OWNER shall pay ENGINEER for
Additional Services as follows:
1. General. For services of ENGINEER's
employees engaged directly on the Project
pursuant to paragraph A2.01 or A2.02 of Exhibit
A of the Agreement, except for services as a
consultant or witness under paragraph
A2.01.A.13, an amount equal to ENGINEER's
Direct Labor Costs based upon the rate schedule,
which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and
purposes, plus Reimbursable Expenses and
ENGINEER's Consultant's charges, if any.
Additional Services shall not exceed 55,000.00
without the prior written consent of the Owner.
2. (Not Used).
3. The cost not to exceed includes
compensation for ENGINEER's services and C4.04 For ReimbursableE.rpenses
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05), A. (Modified) When not included in
if any. Appropriate amounts have been compensation for Basic Services under paragraph
Page 1 of 2 pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses. 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 $15,000.00
without the prior written consent of the Owner.
B. (Modified) Reimbursable Expenses include
the following categories: mileage. parking tolls, long
distance, reproduction of Drawings. Specifications,
Bidding Documents, and similar Project - related items
in addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to ENGINEER for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter
multiplied by a Factor of I.I. Mileage will be
charged at the IRS prescribed rate.
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.
04.05 For ENGINEER's Consultant's CYrarges
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of I.I. The consultant
charges shall not exceed the following amounts
specified for each of the following services, unless
approved in writing by the OWNER. The charges
include the factor. and are as follows:
( l) Surveying S 27,500.00
(2) Geotechnical S 50,600.00
(3) Structural S 24,200.00
(4) Electrical S 7,700.00
C4.06 Direct Labor Costs
A. ( Deleted)
B. (Deleted).
4.07 Factors
A. (Deleted)
B. External Reimbursable Expenses and
ENGINEER's Consultant's Factors include
ENGINEER's overhead and profit associated with
ENGINEER's responsibility for the administration of
such services and costs.
C4.08 Other Provisions Concerning Pgvinent
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 attached rate schedule for the
cumulative hours charged to the Project during the
billing period by all of ENGINEER's employees.
plus Reimbursable Expenses and ENGINEER's
Consultant's charges, if any.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Cost not to E.Yceed Method of Payment)
APPENDIX l
TO EXHIBIT C
Title
Free per Hour
Principal
$143.07
Senior Project Manager
$122.04
Project Engineer
S109.64
CAD Designer
$91.13
CAD Drafting
S64.41
Administrative
$84.71
Secretarial
$63.22
Clerical
$48.64
Page 1 of I Pages
(Appendix I to Exhibit C)
This is EXHIBIT E, consisting of Z pages, referred to in and
part of the Agreement behveen OWNER and ENGINEER
for Professional Services dated
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER'S Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
OWNER
CONTRACTOR
Initial:
OWNER
ENGINEER
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof
By:
Title:
Dated:
Page I of ? Pages
(Exhibit E - Notice of Acceptability of Work)
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 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect insurance against claims for injuries to or death of persons or damages to property which may arise
out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable.
The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish
separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective mininitun coverage amounts
required in this contract:
Commercial General Liability (CGL)
General Aggregate: S1,000,000
Products & Completed Operations: S1,000.000
Personal & Advertising Injury: S 1,000,000
Per Occurrence: S500,000
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: 51,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability S500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $1,000,000
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
liabilityand business automobile policies.
e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to
execution of this agreement.
f Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and /or all insurance
coverage shall be furnished to City of Baytown's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of ? pages, referred to in and
part of the Agreement between O« NER and ENGfNEER
for Professional Services dated
Initial:
OWNER
ENGINEER
PROFESSIONAL AGREES TO AND SHALL INDEMNIFY AND
HOLD HARtNILESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO
AS THE "CITY ") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO
ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT,
ARISING OUT OF, OR IN CONNECTION WITH THE WORK
DONE BY PROFESSIONAL UNDER THIS CONTRACT CAUSED
BY THE SOLE OR JOINT NTEGLIGENCE OF PROFESSIONAL. IT
IS THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH PROFESSIONAL AND THE CITY, TIIAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY PROFESSIONAL TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF
PROFESSIONAL'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 DAINIIAGE OF PERSONS THAT IS CAUSED BY OR
RESULTS FRORI THE NEGLIGENCE OF THE CITY. IN THE
EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT
AGAINST THE CITY FROM WHICH THE CITY IS
INDE.INIFIED, PROFESSIONAL FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE
INDEININITY PROVIDED FOR IN THIS ARTICLE IX SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
Page I of 3 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 Nvith ENGINEER's work to be performed
hereunder. This release shall apply with respect to ENGINEER's work regardless
of whether said claims, demands, and causes of action are covered in whole or in
part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supercede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and /or expiration of this Agreement.
Page 2 of 2 Pages
(Exhibit K - Indemnification)
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF «'ORK
The Notice of Acceptability of Work ( "Notice ") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
I . Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
-I. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR's work) under ENGINEER'S Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish and
perform the work therunder in accordance with the Contract documents, unless ENGINEER knew or should
have known of such failure and failed to notify the Owner of such failure and take appropriate action so that the
same were corrected and brought into compliance with the Contract Documents.
Page 2 of -2 Pages
(Exhibit K - Indemnification)
S
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of `(; }L 1 ( f"Effechx a Date")
Between
The City of Baytown ("OWNER")
and
Langford Engineering, Inc. ("ENGINEER")
ONN NER intends to constrict the Proposed North Main:111-10 Utility Project(the"Project"). The Project consists
of two phases. The first phase of the Project will provide for sanitary sewer services on North Main Street, north of I-
10 to Wallis%ille Road,and a general benefit lift station along the North 1-10 feeder road,east of North Main Street.
The second phase of the Project will provide for sanitary sewer services along North Main Street,south of I-10 to
Lynchburg-Cedar Bayou Road,and w ill include the installation of a 12-inch water line along North Main Street from I-
10 south to Lynchburg-Cedar Bayou Road. Engineer will perform the preliminary design and final design services for
both phases simultaneously. The bidding phase,construction phase,and post-construction services for the two phases
of the Project will be performed separately for each Project phase with priority given to the first phase of the 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 l of 12
TABLE OF CONTENTS PaQr
ARTICLEI -SERVICES OF ENGINEER........................................................................................................................3
1.01 Scope.................................................... .......................--••-••................................._....................................3
ARTICLE 2-OWNER'S RESPONSIBILITIES................................................................................................................3
2.01 General..........................................................................---............--.........................................-................3
ARTICLE 3-TIVIES FOR RENDERING SERVICES..........................1-...........................-.......... ............-'-...........3
3.01 General...............................................................................................................................................................3
3.02 Suspension....................................................................................... .................................................................3
ARTICLE 4-PAYVIENTS TO ENGINEER.......................................................................................................................3
4.01 Methods of Payment for Services and Reimbursable Expenses or ENGINEER............................................3
4.02 Other Provisions Concerning Payments.....I--...... ......--.... ....... ............3
ARTICLE 5-OPINIONS OF COST...................................................................................................................................4
5.01 Opinions of Probable Construction Cost...................................................................................................---4
5.02 Deswning to Construction Cost Limit.....................—........................................---.... ........... ...............4
5.03 Opinions of Total Project Costs.......................................................................................................................4
ARTICLE 6-GENERAL CONSIDERATIONS............................................................................................................ ..4
6.01 Standards of Performance.............•...................................................................................................................4
6.02 Authorized Project Representatives.................................-...........................................................................5
6.03 Design without Construction Phase Services.......................................................—........................................5
6.04 Use of Documents.. ......................:..........................................................................................................5
6.05 i nsurance..........................................................................6
6.06 Terniination.......................................................................................................................................................6
6.07 Controlling Law............................................................................................................ 7
6.08 Successors,Assigns.and Beneficiaries...................................•...................--.............-....................-:..........I....7
6.09 Dispute Resolution...........................................................................................................................7
6.10 1lazardous 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 1 leadings......................................................................................................................... ...............................8
ARTICLE7- DEFINITIONS 8
7.01 Defined Terms..................................................................................................................................................8
ARTICLE 8-EX111BITS AND SPECIAL PROVISIONS............................................................................................... I
8.01 Exhibits Included............................................................................................................................................. 11
8.02 Total Agreement.............................................................................................................................................. I 1
Standard Form of Agreement
Bettieen Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1 -SERVICES OF ENGINEER B. (Modified) If ENGI EER'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
1.01 Scope compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
A. ENGINEER shall provide the Basic and Additional connection %%ith, among other thim_s, such delay or
Services set forth herein and in Exhibit A. suspension and reactivation and the fact that the time for
performance under this Agreement has been revised.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth ARTICLE 4- PAYMENTS TO ENGINEER
in Exhibit A.
C. If authorized by OWNER, ENGINEER shall 4.01 Methods of Payment for Services and
fumish Resident Project Representative(s) with duties, Reimbursable Expenses of ENGINEER
responsibilities and limitations of authority as set forth in
Exhibit D. A. For Basic Services. ON NER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
ARTICLE 2-OWNER'S RESPONSIBILITIES Part 1,as set forth in Exhibit C_
B. For Additional Services. OWNER shall pay
2.01 General ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2,as set forth in Exhibit C.
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B. C.(Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay ENGINEER for Reimbursable
ARTICLE 3-TIMES FOR RENDL121NG SERVICES Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C. Ilowever, all expenses
associated with meals and lodging must be approved in
3.01 General writing by OWNER prior to ENGINEER incurring an
expense associated therewith; otherwise, the parties hereto
A. (Modified) ENGINEER's services and agree and understand that OWNER shall not be liable and
compensation under this Agreement have been agreed to for ENGINEER shall not make a claim against OWNER for anv
the design of the Project. ENGINEER's obligation to render such expenses.
services hereunder will be for whatever period necessary for
the final completion of said services.4.02 Other Provisions Concerning Payments
B. (Deleted).A. Preparation of Invoices_ Invoices will be prepared
in accordance with ENGINEER's standard invoicing
C. (Modified) For purposes of this Agreement the term practices and will be submitted to OWNER by ENGINEER,
day"means a calendar day of 24 hours. unless otherwise agreed. ENGINEER shall supply detailed
back-up information along with each invoice in order for the
3.02 Suspension OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
A.(Modified) If OWNER fails within a reasonable Exhibit C.
period of time to give written authorization to proceed .with
any phase of services after completion of the immediately B.(Modified) Pairmew of Invoices. Invoices are due
preceding phase, or if OWNER delays ENGINEER's and payable within 30 days after the receipt of the invoice and
services. ENGINEER may, after giving seen days written the necessary backup information. If OWNER fails to make
notice to OWNER,suspend services under this Agreement. If any payment due ENGINEER for services and expenses
during such seven-day period, OWNER gives written within 30 days after receipt of ENGINEER's invoice and
authorization to proceed or ENGINEER'S services are no backup documentation therefor,the amounts due ENGINEER
longer delayed by OWNER, ENGINEER may not suspend will be increased at the rate of 1.0% per month (or the
services under this Agreement. maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days written
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
notice to OWNER suspend services under this Agreement professional generally familiar with the industry. However.
until ENGINEER has been paid in full all amounts due for since ENGINEER has no control over the cost of labor,
services, expenses, and other related charges. I lowever, it is materials, equipment, or services furnished by others, or over
expressly understood and agreed that ENGINEER will not the Contractor's methods of determining prices, or over
charge any interest or penalty as set forth herein on any competitive bidding or market conditions, ENGINEER
portion of an invoice that is disputed and withheld in cannot and does not guarantee that proposals, bids, or actual
accordance with paragraph 3.02.0 and that ENGINEER will Construction Cost will not vary from opinions of probable
not suspend services under the agreement on account of a Constriction Cost prepared by ENGINEER. If OWNNER
disputed invoice or on account of monies withheld. All wishes greater assurance as to probable Constriction Cost,
payments will be credited first to principal and then to OWNER shall employ an independent cost estimator as
interest. provided in Exhibit B.
C. Disputed hn•oicec. In the event of a disputed or 5.02 Designing to Construction Cost Limit
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be A. If a Construction Cost limit is established between
paid. OWNER and ENGINEER, such Construction Cost limit and
a statement of ENGINEER's rights and responsibilities with
D. Parntenis (,pon Ternimation, respect thereto will be specifically set forth in Exhibit F,
Construction Cost Limit," to this Agreement. (Exhibit F is
In the event of any termination under section 6.06, not used).
ENGINEER will be entitled to invoice OWNER and
will be paid in accordance with Exhibit C for all 5.03 Opinions of Total Project Costs
services performed or furnished and all Reimbursable
Expenses incurred through the effective date of A, ENGINEER assumes no responsibility for the
termination. accuracy of opinions of Total Project Costs.
2. (Deleted) ARTICLE 6-GENERAL CONSIDERATIONS
E. (Modified) Records o/ ENGLVEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's 6.01 Standards of Performance
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices. A. (Modified) The standard of care for all professional
Copies of such records will be made available to OWNER engineering and related services performed or fumished by
upon request at no cost to OWNER. ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINEEWs profession
F. Legislatn e .actions. In the event of legislative practicing under similar circumstances at the same time and in
actions after the Effective Date of the Agreement by any level the same locality.
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this B. (Modified) ENGINEER shall be responsible for the
Project or compensation therefor, such new taxes, fees. or technical accuracy of its services and documents resulting
costs shall be invoiced to and paid by O%VNER as a therefrom, and OWNER shall not be responsible for
Reimbursable Expense to which a Factor of 1.0 shall be discovering deficiencies therein. ENGINEER shall correct
applied. Should such tares, fees, or costs be imposed, they such deficiencies without additional compensation except to
shall be in addition to ENGINEER's estimated total the extent such action is directly attributable to deficiencies in
compensation.OkVNER-furnished information upon which ENGINEER is
authorized to rely as provided in Section 6 01 E
ARTICLE 5-OPINIONS OF COST
C. ENGINEER shall perform or fitmish professional
engineering and related services in all phases of the Project to
5.01 Opinions of Probable Construction Cost which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. ENGINEER
A. ENGINEER's opinions of probable Construction may employ such ENGINEER's Consultants as ENGINEER
Cost provided for herein are to be made on the basis of deems necessary to assist in the performance or furnishing of
ENGiNEER's experience and qualifications and represent the services. ENGINEER shall not be required to employ any
ENGINEER's best judgment as an experienced and qualified ENGINEER's Consultant unacceptable to ENGINEER.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
contained in this paragraph shall be construed so as to absolve
D. ENGINEER and OWNER shall comply with ENGINEER from liability for any such failure about which
applicable Laws or Regulations and OWNER-mandated ENGINEER knew or should have known existed in the
standards. This Agreement is based on these requirements as exercise of ENGINEER's services under this Agreement.
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for K. (Modified) ENGINEER shall not be responsible for
modifications to 0WNER's responsibilities or to the acts or omissions of any Contractor's), subcontractor or
ENGINEER's scope of services, times of performance, or supplier.or of any of the Contractor's agents or employees or
compensation.any other persons (except ENGINEER's own employees and
its consultants for which it is legally liable) at the Site or
E. (Modified) OWNER shall be responsible for. and otherwise furnishing or performing any of the Contractor's
ENGINEER may rely upon, the accuracy and completeness work; or for any decision made on interpretations or
of all requirements, programs, instructions, reports, data. and clarifications of the Contract Documents given by OWNER
other information furnished by OWNER to ENGINEER without consultation and advice of ENGINEER.
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER ma} use L.(Modified) The General Conditions for any
such requirements, reports, data, and information in construction contract documents prepared hereunder are to be
performing or furnishing services under this Agreement. the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs 6.02 .Authorized Project Representatives
incident thereto so as not to delay the services of
ENGINEER. A. Contemporaneous with the execution of this
G. Prior to the commencement of the Construction Agreement, ENGINEER and OWNER shall designate
Phase, OWNER shall notify ENGINEER of any variations specific individuals to act as ENGINEER's and OWNER's
from the language indicated in Exhibit E, "Notice of representatiNes with respect to the services to be performed or
Acceptability of Work,"or of any other notice or certification furnished by ENGINEER and responsibilities of OWNER
that ENGINEER will be requested to provide to OWNER or under this Agreement. Such individuals shall have authority
third parties in connection with the Project. OWNNER and to transmit instructions, receive information, and render
ENGINEER shall reach agreement on the terms of any such decisions relative to the Project on behalf of each respectn'e
requested notice or certification,and OWNER shall authorize party.
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested. 6.03 Design Hithout Construction Phase Services
11. (Modified) ENGINEER shall not be required to sign A. Should OWNER provide Construction Phase
any documents, no matter by whom requested, that would services with either OW'NER's representati%es or a third
result in ENGINEER's having to certify, guarantee or part, ENGINEER's Basic Services under this Agreement
warrant the existence of conditions whose existence will be considered to be completed upon completion of the
ENGINEER cannot ascertain;provided, that ENGENEER has Final Design Phase or Bidding or Negotiating Phase as
exercised due diligence and was not otherwise required to outlined in Exhibit A.
certify,guarantee or warrant the existence of such conditions.
B. It is understood and agreed that if ENGINEER's
1. During the Construction Phase, ENGINEER shall Basic Services under this Agreement do not include Project
not supervise, direct, or have control over Contractor's work, observation. or review of the Contractor's performance, or
nor shall ENGINEER ha\e authority over or responsibility any other Construction Phase services, and that such services
for the means. methods. techniques, sequences, or procedures will be provided by OWNER. then OWNER assumes all
of construction selected by Contractor, for safety precautions responsibility for interpretation of the Contract Documents
and programs incident to the Contractor's work in progress, and for construction observation or review and waives any
nor for any failure of Contractor to comply with Laws and claims against the ENGINEER that may be in any way
Regulations applicable to Contractor's furnishing and connected thereto.
performing the Work.
6.04 Use of Documents
J.(:Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for A. (Modified) upon execution of this Agreement, the
anv Contractor's failure to furnish and perform the Work in ENGINEER -rants to the OWNER an ownership interest in
accordance with the Contract Documents. However, nothing
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
the Instruments of Service. The ENGINEER shall obtain compatibility, usability• or readability of documents resulting
similar interests from the OWNER and the ENGINEER'S from the use of software application packages, operating
consultants consistent with this Agreement. Within seven systems, or computer hardware differing from those used by
days of any termination or expiration of this Agreement, the ENGINEER at the beginning ofthis Project.
ENGINEER shall be required to tender to OW\,ER all
Instruments of Service; provided OWNER has paid all F. (Modified) Any use of the Documents on any
monies. excluding any disputed amount, due and owing to extension of the Project or on any other project shall be at
ENGINEER in accordance with this .Agreement. With such OWNER's sole risk and OWNER hereby releases
ownership interest, it is expressly understood by the parties ENGINEER from any liability associated solely with the
hereto that the OWNER may use the Instruments of Service reuse of the Documents.
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction. reconstruction, G. If there is a discrepancy between the electronic files
alteration,and/or repairs of the Project. As a condition to the and the hard copies,the hard copies govern.
OWNER's use of the Instruments of Service. the OWNER
v
hereby expressly agrees to remove the ENGINEER's name I I. Any verification or adaptation of the Documents for
and all references to the ENGINEER,and its consultants from extensions of the Project or for any other project will entitle
the Documents. The OWNER hereby releases any and all ENGINEER to further compensation at rates to be agreed
claims which the OWNER could make arising out of or in upon by OWNER and ENGINEER.
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this 6.05 Insurance
Paragraph 6.04.A shall be for the benefit of the ENGINEER.
its officers, and employees and sub-consultants, as well as A. ENGINEER shall procure and maintain insurance as
their successors and assigns. set forth in Exhibit G,"Insurance"
B. (Modified) Copies of OWNER-furnished data that B. Not used.
may be relied upon by ENGI\EER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit 13 C. Not used.
unless otherwise expressly stated or communicated by
OWNER_ Files in electronic media format of text, data. D. Not used.
graphics, or of other types that are famished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any E. Not used.
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk. F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense, provide additional
C. Copies of Documents that may be relied upon by insurance coverage, increased limits, or revised deductibles
OWNER are limited to the printed copies(also known as hard that are more protective than those specified in Exhibit G. If
copies) that arc signed or sealed by the ENGINEER. Files in so requested by OWNER, with the concurrence of
electronic media format of text, data, graphics, or of other ENGINEER, and if commercially available. ENGINEER
types that are furnished by ENGINEER to OWNER are only shall obtain and shall require ENGINEER's Consultants to
for convenience of OW-NER. Any conclusion or information obtain such additional insurance coverage, different limits,or
obtained or derived from such electronic files will be at the revised deductibles for such periods of time as requested by
user's sole risk. OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without 6.06 Termination
authorization of the data's creator. the party receiving
electronic files agrees that it will perform acceptance tests or A.(Modified) The obligations hereunder may be
procedures within 60 days, after which the receiving party terminated:
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors I. For cause,
detected within the 60-day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in a. (Modified) By either party upon 30 days
electronic media format after acceptance by OWNER.written notice in the event of failure by the other
party to perform in accordance with the terms hereof
E. When transferring documents in electronic media through no fault of the terminating party;or
format, ENGINEER makes no representations as to long-term
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
C. Unless expressly provided otherwise in this
b. By ENGINEER upon seven days written Agreement:
notice if ENGINEER is being requested by
OWNER to furnish or perform services contrary to I. Nothing in this Agreement shall be construed to
ENG ENE ER's responsibility as a licensed create, impose, or give rise to any duty owed by
professional. OWNER or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
c. Notwithstanding the foregoing, this any surety for or employee of any of them.
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice 2. All duties and responsibilities undertaken
begins, .within seven days of receipt of such notice, pursuant to this Agreement will be for the sole and
to correct its failure to perform and proceeds exclusive benefit of OWNER and ENGINEER and not
diligently to cure such failure within no more than for the benefit of any other party. The OWNER agrees
30 days of receipt thereof; provided,however,that if that the substance of the provisions of this paragraph
and to the extent such substantial failure cannot be 6.08.0 shall appear in the Contract Documents.
reasonably cured within such 30 day period, and if
such parry has diligently attempted to cure the same 6.09 Not Used.
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend 6.10 Hazardous Environmental Condition
tip to, but in no case more than 60 days after the date
of receipt of the notice. A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
2. Fur convenience by OWNER effective upon the exist.
receipt of notice by ENGINEER
B. (Modified) OWNER has disclosed to the best of
B. Not used. its knowledge and belief to ENGINEER the existence of all
Asbestos, PCBs, Petroleum, Iazardous Waste, or
6.07 Controlling Law Radioactive Material located at or near the Site, including
type,quantity and location.
A. This Agreement is to be governed by the law of the
state in which the Project is located. C. (Modified) If a I Iazardous Environmental
Condition is encountered or alleged. ENGINEER shall have
6.08 Successors,.assigns,and Beneficiaries the obligation to notify OWNER on or before the next
business day of the same.
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal D. It is acknowledged by both parties that
representatives of OWNER and ENGINEER (and to the ENGINEER's scope of services does not include any sen ices
extent permitted by paragraph 6.08.13 the assigns of OWNER related to a I lazardous Environmental Condition. In the event
and ENGINEER) are hereby bound to the other party to this ENGINEER or any other party encounters a Hazardous
Agreement and to the partners. successors, executors, Environmental Condition, ENGINEER may, at its option and
administrators and legal representatives (and said assigns) of without liability for consequential or any other damages,
such other parry, in respect of all covenants, agreements and suspend performance of services on the portion of the Project
obligations of this Agreement. affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
B. `either OWNER nor ENGINEER may assign, appropriate. abate, remediate, or remove the Hazardous
sublet, or transfer any rights under or interest (including, but Environmental Condition: and (ii) %%arrants that the Site is in
without limitation, moneys that are due or may become due) full compliance a ith applicable La%%s and Regulations.
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or E. OWNER acknowledges that ENGINEER is
transfer is mandated or restricted by law. Unless specifically performing professional services for OWN ER and that
stated to the contrary in any written consent to an assignment, ENGINEER is not and shall not be required to become an
no assignment will release or discharge the assignor from any "arranger," "operator," "generator." or "transporter" of
duty or responsibility under this Agreement.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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
the Site in connection with ENGINEER's activities under this
Agreement. ARTICLE 7- DEFINITIONS
F. If ENGfNEER's services under this Agreement
cannot be performed because of a I lazardous Environmental 7.01 Defined Terms
Condition, the existence of the condition shall justify
ENGINEER's terminatinu this Agreement for cause on 30 A. Wherever used in this Agreement (including the
days notice. Exhibits hereto) and printed with initial or all capital letters.
the terms listed below have the meanings indicated. .%hich
6.11 Allocation of Risks are applicable to both the singular and plural thereof:
A. (Modified) Indemnification. See Exhibit K,I. Addenda--Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
change the Bidding Documents.
6.12 Notices
2. Additional Services--The services to be
A. (,Modified.) Any notice required under this performed for or Furnished to OWNER by ENGINEER
Agreement will be in writing, addressed to the appropriate in accordance with Exhibit A, Part 2 of this Agreement.
party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid. 3. .fgreerneni--This"Standard Form of Agreement
or by a commercial courier service. Additionally, notices between OWNER and ENGINEER for Professional
may be given via facsimile or by electronic mail if such notice Services," including those Exhibits listed in Article q
is also given personally, or by registered or certified mail or hereof.
by a commercial courier service. All notices shall be effective
upon the date of receipt. 4. Apia/icarion for Payment--The foram acceptable
to ENGINEER which is to be used by Contractor in
6.13 Survival requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
A. (Modified) All express representations, supporting documentation as is required by the Contract
indemnifications, and limitations of liability included in this Documents
Agreement will sun ice its completion or termination for any
reason. 5 Ashesius--Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
6.14 Severability fibers into the air above current action levels established
by the United States Occupational Safety and Health
A. .Any provision or part of the Agreement held to be Administration.
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue 6. &r.%ic .Services--The services to be performed
to be valid and binding upon OWNER and ENGINEER,who for or himished to OWNER by ENGINEER in
agree that the Agreement shall be reformed to replace such accordance with Exhibit A. Part 1,of this Agreement.
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the 7. Bid--The offer or proposal of (lie bidder
intention of the stricken provision. submitted on the prescribed forms setting forth the prices
for the Work to be performed.
6.15 Waiver
3. Brddbnq Docuinews--The advertisement or
A. \on-enforcement of any provision by either party invitation to Bid, instructions to bidders, the Bid form
shall not constitute a waiver of that provision, nor shall it and attachments, the Bid bond, if any, the proposed
affect the enforceability of that provision or of the remainder Contract Documents,and all Addenda,if any.
of this Agreement.
9. Change Order--A document recommended by
6.16 Headings ENGINEER, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
A. The headings used in this Agreement are for general the Work, or an adjustment in the Contract Price or the
reference only and do not have special significance.
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Between Owner and Engineer for Professional Services
Page 8 of 12
Contract Times, issued on or after the Effective Date of so that it is ready for final payment as evidenced by
the Construction Agreement.ENGINEER's written recommendation of final payment.
10. Cunstrvcnnn .4greeinew--The written 16. Contractor---An individual or entity with whom
instrument which is evidence of the agreement,contained OWNER enters into a Construction Agreement.
in the Contract Documents, between OWNER and
Contractor covermg the Work. 17. Correction Period--The time after Final
Completion during which Contractor must correct, at no
11. Consiruction Conir•ac•t--The entire and cost to OWNER,any Defective Work.normally one year
integrated written agreement between the OWNER and after the date of Final Completion or such longer period
Contractor concerning the Work. of time as may be prescribed by Laws or Regulations or
by the terms of any applicable special guarantee or
12. Construction Cost--The cost to OWNER of specific provision of the Contract Documents.
those portions of the entire Project designed or specified
by ENGINEER. Construction Cost does not include 18. De%ctive--An adjective which.when modifying
costs of services of ENGINEER or other design the word Work, refers to Work that is unsatisfactory,
professionals and consultants,cost of land,rights-of way, faulty, or deficient, in that it does not conform to the
or compensation for damages to properties,or O",\ER's Contract Documents, or does not meet the requirements
costs for legal, accounting. insurance counseling or of any inspection, reference standard. test, or approval
auditing services, or interest and financing charges referred to in the Contract Documents, or has been
incurred in connection with the Project, or the cost of damaged prior to ENGINEER's recommendation of final
other services to be provided by others to OWNER payment.
pursuant to Exhibit B of this Agreement. Construction
Cost is one ofthe items comprising Total Project Costs. 19. Documents—Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables.
13. (Modified) Contract Documents--Documents whether in printed or electronic media format, provided
that establish the rights and obligations of the panes or furnished in appropriate phases by ENGINEER to
engaged in construction and include the Construction OWNER pursuant to this Agreement.
Agreement between O\V\ER and Contractor and all
documents referenced therein.Addenda(which pertain to 20. Drawings--That part of the Contract Documents
the Contract Documents), Contractor's Bid (including prepared or approved by ENGINEER %hich graphically
documentation accompanying the Bid and any post-Bid shows the scope, extent, and character of the Work to be
documentation submitted prior to the notice of award) performed by Contractor. Shop Drawings are not
when attached as an exhibit to the Construction Drawings as so defined.
Agreement, the notice to proceed, the bonds. appropriate
certifications, insurance documents the General 21. Effective Date o/the Construction Agreement--
Conditions, the Supplementary Conditions, the The date indicated in the Construction Agreement on
Specifications and the Drawings as the same are more which it becomes effective, but if no such date is
specifically identified in the Construction Agreement, indicated, it means the date on which the Constniction
toeether with all Written Amendments, Change Orders. Agreement is signed and delivered by the last of the two
Work Change Directives, Field Orders, and parties to sign and deliver.
ENGINEER's written interpretations and clarifications
issued on or after the Effecti\e Date of the Construction 22. i/ftctive Date of the .Agreement--The date
Agreement. Approved Shop Drawings and the reports indicated in this Agreement on which it becomes
and drawings of subsurface and physical conditions are effective, but if no such date is indicated, it means the
not Contract Documents date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
14. Contract Price--The moneys payable by
OWNER to Contractor for completion of the Work in 23, ENGINEER's Consultants Individuals or
accordance with the Contract Documents and as stated in entities having a contract with ENGINEER to furnish
the Constriction Agreement.services with respect to this Project as ENGINEER's
independent professional associates. consultants,
15, Conti-act Tines--The numbers of days or the subcontractors, or vendors. The term ENGINEER
dates stated in the Construction Agreement to: includes ENGINEER's Consultants.
i)achieve Final Completion,and(ii)complete the Work
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Between Owner and Engineer for Professional Services
Pace 9 of 12
24. Field Order--A written order issued by 33. Recorcl Drawhip--The Drawings as issued for
ENGINEER which directs minor changes construction on which the ENGINEER, upon completion
in the Work but which does not involve a of the Work. has shown changes due to Addenda or
chanee in the Contract Price or the Chanee Orders and other information which ENGINEER
Contract Times, considers significant based on record documents
Furnished by Contractor to ENGINEER and which %were
25. Final Completion shall mean that all work has annotated by Contractor to show chanties made during
been completed, all final punch list items construction.
ha%e been inspected and satisfactorily
completed, all payments to subcontractors 34. Reinibursuble E.ipenses--fhe expenses incurred
have been made, all documentation and directly by ENGINEER in connection with the
warranties have been submitted. all performing or famishing of Basic and Additional
closeout documents have been executed Services for the Project for which OWNER shall pay
and approved by the OWNER. and the ENGINEER as indicated in Exhibit C.
Project has been finally accepted by the
OWNER. 35. Rc.ciclenl Project Representative--The
authorized representative of ENGINEER, if any,
26. General Conditions-That part of the Contract assigned to assist ENGINEER at the Site during the
Documents \%hich sets forth terms, conditions, and Constntction Phase. The Resident Project Representative
procedures that govern the Work to be performed or will be ENGINEER's agent or employee and under
furnished by Contractor with respect to the Project. ENGINEER's supervision. As used herein, the term
Resident Project Representative includes any assistants
27. lla::ardous Environmental Condition--The of Resident Project Representative agreed to by
presence at the Site of Asbestos, PCB's, Petroleum, OWNER. The duties and responsibilities of the Resident
I Iazardous Waste, or Radioactive Materials to such Project Representative are as set forth in Exhibit D.
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in 36. Samples—Physical examples of materials,
connection with the Work. equipment, or workmanship that are representative of
some portion of the Work and which establish the
28. lla_ardous Waste--The term Hazardous Waste standards by which such portion of the Work will be
shall have the meaning provided in Section 1004 of the judged.
Solid Waste Disposal .Act (42 USC Section 6903) as
amended from time to time. 37. Shop Drativings--All drawings, diagrams,
illustrations, schedules, and other data or information
29. Lairs and Regulations: Laws or Regidunons-- which are specifically prepared or assembled by or for
Any and all applicable laws, rules, regulations, Contractor and submitted by Contractor to ENGINEER
ordinances. codes, standards, and orders of any and all to illustrate some portion of the Work.
governmental bodies, agencies, authorities, and courts
having jurisdiction. 38. Site--Lands or areas indicated in the Contract
Documents as being famished by OWNER upon which
30. PCB'i--Polychlorinated biphenyls.the Work is to be performed, rights-of-way and
easements for access thereto, and such other lands
31. Perooleum--Petroleum, including crude oil or furnished by OWNER which are designated for use of
any fraction thereof which is liquid at standard conditions Contractor.
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil, 39. Specifications--That part of the Contract
petroleum, fuel oil, oil sludge. oil refuse, easoline. Documents consisting of written technical descriptions of
kerosene,and oil mixed with other non-Hazardous Waste materials, equipment, systems, standards, and
and crude oils. workmanship as applied to the Work and certain
administrative details applicable thereto.
32. Radioactive ,Vatenals- 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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
40. Suhstunnul Completion--The time at which the .ARTICLE 8 - EXHIBITS AND SPECIAL
Work (or a specified pan thereof)has progressed to the point PROVISIONS
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 8.01 Exhibits Included
part thereof) can be utilized for the purposes for which it is
intended. The terns "substantially complete" and A. Exhibit A, "ENGINEER's Services." consistine of
substantially completed"as applied to all or part of the Work eight(S)pages.
refer to Substantial Completion thereof.
B. Exhibit B, "OWNER's Responsibilities," consisting
41. Supplementurr Conditions--That part of the Contract of two(2)pages.
Documents which amends or supplements the General
Conditions.C. Exhibit C, "Payments to Engineer for Services and
Reimbursable Expenses,"consisting of two(2)pages.
42. (Modified) Total Project Coats--The sum of the
Construction Cost, allowances for contingencies, the total D. Exhibit D, "Duties, Responsibilities and Limitations
costs of services of ENGINEER or other design professionals of Authority of Resident Project Representative, "is not used.
and consultants,cost of land, rights-of-way,compensation for
damages to properties. OWNER's costs for legal.accounting, E. Exhibit E, "Notice of Acceptability of Work,"
insurance counseling or auditing services, interest and consisting of two(2) pages.
financing charges incurred in connection with the Project,and
the cost of other services to be provided by others to 0W1ER F. Exhibit F,"Construction Cost Limit," is not used.
pursuant to Exhibit B of this Agreement.
G. Exhibit G,"Insurance,"consisting of two(2) pages.
43. Work--The entire completed construction or the
various separately identifiable parts thereof required to be 11. Exhibit 11,"Dispute Resolution,"is not used.
provided under the Contract Documents with respect to this
Project. Work includes and is the result of performing or 1. Exhibit I,"Allocation of Risks."is not used.
furnishing labor, services. and documentation necessary to
produce such construction and furnishing, installing, and J. Exhibit J,"Special Provisions"is not used.
incorporating all materials and all equipment into such
construction,all as required by the Contract Documents.K. (Added) Exhibit K, "Indemnification" consisting of
two(2) pages.
44. Work Change Directive--A written directi%e to
Contractor issued on or after the Effective Date of the 8.02 Total Agreement
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition. A. This Agreement (consisting of pages I to 12
deletion, or revision in the Work, or responding to differing inclusive, together with the Exhibits identified above)
or unforeseen subsurface or physical conditions under which Constitutes the entire agreement between OWNER and
the Work is to be performed or to emergencies. A Work ENGINEER and supersedes all prior written or oral
Change Directive will not change the Contract Price or the understandings. This Agreement may only be amended,
Contract Times but is evidence that the parties expect that the supplemented, modified, or canceled by a duly executed
change directed or documented by a Work Change Directive written instrument. This Agreement along with the exhibits
will be incorporated in a subsequently issued Change Order shall be read and construed as the same Agreement.
following negotiations by the parties as to its effect, if anv,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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I I of 12
IN WITNESS WHEREOF,the parties hereto have
executed this Agreement,the Effective Date of which is
indicated on page I.
O VNE ITY BA ENGINEER
o b L 1 Per- Timothy B.Hardin,P.E.
itle: ity Manager Title Principal
Date Signed: d o-S— Date Signed W&9ZD06
Address for giving notices:Address for giving notices:
P.O. BOX 424 1080 W. SAM I IOUSTON PKWY N., SUITE 200
BAYTOWN,TEXAS 77422-0424 1 IOUSTON,TX 77043-5014
Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A1:
Jarle(Joe)Lysengen,E.I.T. Timothy B. Hardin, P.E.
Title: Acting Director of Engineering Title: Vice President
Phone Number: (281)420-6546 Phone N umber:713-461-3530
Facsimile Number: (281)420-6586 Facsimile Number:713-932-7505
E-Mail Address: joe.lysengen[ubavtown.org E-MailAddress;timhCO,Langford-engineertng.net
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A. consisting of 8 pages, referred to .n and
part of the Agreement behtieen OWNER and ENGINEER
for Professional Services dated Q5i "(p
Initial:
OWNER
ENGINEER
ENGINEER's Services
Article I of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART I -- BASIC SERVICES(Modified)
A 1.01 Preliminurt,Dcsi,n Phase
A. For both phases of the Project. ENGINEER shall:
I. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, ckw5ult with, and analyze requirements of governmental authorities haying
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment(if any).
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards and/or commissions to
receive input into OWNER'S requirements for the Project and evaluation potential solutions available
to OWNER.
6. (Modified) Prepare separate preliminary engineering reports for each phase of the Project (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 ENGINiEER
recommends. These Reports will be accompanied by ENGINEER's opinion of Total Project Costs for
each solution which is so recommended for the each phase of 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 famished
by OWNER. allowances for other items and services included ,vithin the definition of Total Project
Costs.
7. Fumish three (3) review copies of each Report to OWNER within ninety-eight (98) days of
authorization to begin services and review it with OWNER.
8. Revise the Reports in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Reports to the OWNER within twenty(20)days after completion of
reviewing it with OWNER.
Page I of 8 pages
Exhibit A- Engineer's Services)
B. (Modified) ENGINEER'S services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the rev ised Reports have been deli\ered to and accepted by OWNER.
A 1.02 Filial Design Phase
A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinions 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 for both phases of the Project,:
1. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings
indicating the scope, extent, and character of the Work to be performed and famished 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 as needed for tite OWNER to file
applications for permits from or to obtain approvals of governmental authorities having jurisdiction to
review or approve the final design of the Project and assist OWNER in consultations, if any, with
appropriate authorities.
3. Advise OWNER of any adjustments to the opinions of probable Construction Cost and any adjustments
to Total Project Costs known to ENGF EER,itemized as provided in paragraph A 1.01.A.6.
4. 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. ENGINEER
will prepare two separate Bidding Documents for tite Project.
5. Submit 5 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within eighty-four(84)days after authorization to proceed with this phase.
6. (.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 thisthese 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 perforated or famished 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, Constriction, and Post-Construction Phases in order to
sequence and coordinate properly such services as are applicable to the work tinder 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 tinder 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 two(2)—one for each phase of the Project.
D. (Modified) ENGINEER's services tinder the 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.
A 1.03 Bidding or Negotiaiing Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinions of probable
Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to
proceed,ENGINEER shall for each phase of the Project:
Page 2 of 8 pages
Exhibit A—Engineer's Services)
I. Assist OWNER in adxertising for and obtaining bids or negotiating proposals for the Work and, where
applicable, provide 15 sets of plans and specifications, and maintain a record of prospecti%e 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 the 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.
6. (Added) Receive and process Contractor deposits or charges for the Bidding Documents.
7. (Added) Assist in connection with Bid protests, rebidding, or re-negotiating contracts for construction,
materials,equipment,or services.
B. (Modified)The Bidding or Negotiating Phase for each phase of the Project will be considered complete upon
commencement of the Construction Phase,
A 1.04 Conswuc•tiun Phase
A, Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER. ENGINEER shall for each phase of the Project:
I. General ,4chninisn•ation o/ Construction Conn-act. Consult with OWNER and act as OWNE-R's
representative as provided in the General Conditions. The extent and limitations of the duties.
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to
Contractor will be issued through ENGINEER,who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratoi-v. Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01.0,if any.
3. Pre-Consn-icction Con/erence. Participate in a Pre-Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate,establish baselines and benchmarks for locating the Work
which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. Vine to Site and Observurion o(Conatrnctiun. 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 ENGNEER's exercise of
Page 3 of 8 pages
Exhibit A--Engineer's Services)
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 cant'out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
professional, to provide for OWNER a greater degree of confidence that the completed Work
will substantially conform to the Contract Documents and that the integrity of the design concept
of the completed Project as a functioning whole as indicated in the Contract Documents has
been implemented and preserved by Contractor. ENGINEER shall not,during such visits or as
a result of such observations of Contractor's work in progress, supervise,direct,or have control
over Contractor's work, nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences. or procedures of construction selected by Contractor.
for safety precautions and programs incident to Contractor's work, or for any failure of
Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. Accordingly, ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to furnish and perfomi its
work in accordance with the Contract Documents.
6. (Modified) DeI ciive 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 confomis 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.
1. Clari/irations and hiterpretations; Fie&Orele-s_ 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. Chunge Orden,; and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER. as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Suniples. 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 constriction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet anv 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. lnspeciions 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
Page 4 of 8 pages
Exhibit A—Engineer's Services)
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 beivveen 01V'VER 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. Applicutions for PaYment. Based on ENGINEER's observations as an experienced and qualified
design professional and on rc%-iew of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGf,NEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWFNER, 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.
b- By recommending any payment. ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as
it is performed and furnished have been exhaustive, extended to every aspect of Contractor's
work in progress, or involved detailed inspections of the Work beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither
ENGINEER's review of Contractor's work fir 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. Conwactor'v Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and
guarantees as prepared by the Contractor in accordance with the Contract Documents. Engineer
will compile this information as provided by Contractor,and deliver three(3)copies of the same
to OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously
submitted and required by the Contract Documents, certificates of inspection, tests and
approvals, Shop Drawings, Samples and other data approved as provided under paragraph
A 1.04.A.9, and the annotated record documents which are to be assembled by Contractor in
Page 5 of Q pages
Exhibit A - Engineer's Serxuces)
accordance with the Contract Documents to obtain final payment. The extent of such
ENGINEER's review will be limited as provided in paragraph A 1.04.A.9.
c. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of
documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings on mylar shoving appropriate
record information based on Project annotated record documents received from Contractor.
15. Subsiumial Canplelion. 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. (.Modified) Final Nonce of Acceplabilit.v o/'the lVorI`. 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 Conso•uclion Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C,
Construction Phase smices may be rendered at different times in respect to the separate contracts.
C. Linlualion 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 tile'A.ork in accordance with the Contract Documents.
A 1.05 Post-Construc•lion Phase
A. Upon written authorization from OWNER. ENGINEER. during the Post-Construction Phase, shall for each
phase of the Project:
I. Provide assistance in connection with the testing and adjusting of Project equipment or systems.
2. Assist OWNER in training OW'NER's staff to operate and maintain Project,equipment,and systems.
3. Assist OWNER in developing procedures for control of the operation and maintenance of, and record
keeping for Project equipment and systems.
4. Provide Operations and Maintenance Manuals to the OWNER as well as electronic as-built drawings for
the completed Project,in a format acceptable to the OWNER.
5. Together with OWNER, visit the Project to observe any apparent defects in the Work,assist OWNER in
consultations and discussions with Contractor concerning correction of any such defects, and make
recommendations as to replacement or correction of Defective Work,if present.
7. In company with OWNER or OWNER's representative,provide an inspection of the Project within one
month before the end of the Correction Period to ascertain whether any portion of the Work is subject to
correction.
Page 6 of 8 pages
Exhibit A—Engineer's Services)
B. The Post-Construction Phase services may commence during the Construction Phase and, if not othervi5e
modified to this Exhibit A.will terminate at the end ofthe Correction Period.
PART 2—ADDITIONAL SERVICES
A2.01 Additional Services Requiring OPFNER's.-futhorizatiun in,4t1vance
A. if authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Sen ices of
the types listed below% These services will be paid for by OWNER as indicated in Article 4 of the Agreement.
1. (Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants, loans or advances in connection with the Project:
preparation or review of environmental assessments and impact statements; review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others: assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER.
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information furnished by OWNER.
3. (Modified) Services resulting from significant changes in the scope,extent,or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including, but not limited to,
changes in size, OWNER's schedule, or character of construction: and revising previously accepted
studies, reports, Drawings. Specifications, or Contract Documents when such revisions are required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
4. (:Modified) Serices resulting from OW'NER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A1.0LAA4
5. Services required as a result of OWNER'S providing incomplete or incorrect Project information u ith
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
Section 6.0 LEA of the Agreement.
6. Providing renderings or models for OWNER'S use.
7. Undertaking investigations and studies including,but not limited to,detailed consideration of operations,
maintenance, and overhead expenses: the preparation of feasibility studies, cash floe and economic
evaluations, rate schedules, and appraisals: assistance in obtaining financing for the Protect; 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.
S. Furnishing services of ENGINEER's Consultants for other than Basic Services.
9. Services attributable to more prime construction contracts than specified in paragraph A 1.03.C.
10. Ser ices during out-of-town travel required of ENGINEER other than for visits to the Site or O\k'NER*s
office.
11. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value enoineering, and constructibility review requested by OWNER; and performing or furnishing
Page 7 of 8 pages
Exhibit A—Engineer's Services)
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 Ilazardous Environmental Condition in compliance with current
Laws and Regulations.
13. (,Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
14. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
15.Other services performed or furnished by ENGINEER not otherwise provided for to this Agreement-
I6. Property descriptions.
17. (Modified) Property,easement,right-of-way,and other special surveys or data,including
establishing relevant reference points.
18- (Added) Environmental assessments,audits,investigations and impact statements,and other relevant
environmental or cultural studies as to the Project,the Site,and adjacent areas.
19 f Added) Additional services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) an occurrence of a I lazardous Environmental Condition, (3) Work damaged
by fire or other cause during construction, or(4)acceleration of the progress schedule involving services
beyond normal working hours-
A2.02 Required-fdclirional Services
A. ENGINEER shall perform or furnish, without requesting or recen tng specific advance authorization from
OWNER, the Additional Services of the types listed below- ENGINEER shall advise OWNER in writing
prior to staning any such.Additional Sern ices
I. (Deleted)
2. (Deleted)
3. (Deleted)
4. (Deleted)
5. (Deleted)
6. (Deleted)
Page 8 of 8 pages
i Exhibit A - Engineer's Services)
This is EXHIBIT B. consisting of? pages, referred to in and
part of the Agreement between 0XVNEq and ENGINEER
for Professional Services dated kQ I aSJLo
Initial:
OWNER
ENGINEER_
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project.
including design objectives and constraints, space, capacity and performance requirements. Flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications: and furnish copies of OWNER's standard
forms,conditions,and related documents for ENGINEER to include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER anv 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 infomlation
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
I. (Deleted).
2. (Deleted).
1 (Deleted).
4. (Deleted).
5. (Deleted).
b. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to proode Additional Senrces 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.
11. (Deleted).
1. (Deleted).
Page I of 2 pages
Exhibit B-OWNER's Responsibilities)
J. Advise ENGINEER of the identity and score of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to,cost estimating, project
peer review,value engineering,and constructibility review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition
to. ENGINEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties,responsibilities,and authority of ENGI\EER.
M. Attend the pre-bid conference, bid opening, pre-constriction 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
Exhibit B-OWITIER's Responsibilities)
This is EXHIBIT C, consisting of? pages, referred to in and
part of the Agreement bet-een OWNER and ENGINEER
for Professional Services dated
Initial:
0WNER
ENGINEER_
Pavments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and for labor, overhead, profit, and Reimbursable
supplemented to include the following agreement of Expenses.
the parties:
4. Deleted.
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
5. The portion of the amount billed for
C4.01 For Basic Services Havinti A Determined ENGINEER's services will be based upon total
Scope —Cost not to Exceed Method o/ services actually completed during the billing
Payment period.
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows: C4.02 For Basic Services Having.4n Undetermined
Scope -- Direct Labor Cosis Times a Factor
1.Modified) A cost not to exceed Method oj'PaYnzent
amount of S427,042.25 for both phase of the
Project based upon the rate schedule, which is A. (Not Used).
attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes. C4.03 For Additional Services
which amount does not include those Engineer's
Consultant's charges as provided below in this A. OWNER shall pay ENGINEER for
Article 4, Subparagraph C4.05, to be distributed Additional Services as follows:
at the completion of each of the phase in the
following amount: I. General. For services of ENGINEER's
employees engaged directly on the Project
a. Preliminary Design Phase S 59,332.65 pursuant to paragraph A2.01 or A2.02 of Exhibit
b. Final Design Phase S 249,806.60 A of the Agreement, except for services as a
c. Bidding and Negotiating Phase S 24.527.80 consultant or witness under paragraph
d. Construction Phase S 83,448.60 A2.01.A.13, an amount equal to ENGINEER'S
e. Post Construction Phase S 9,926.60 Direct Labor Costs based upon the rate schedule,
which is attached as Appendix 1 of Exhibit C
3.2. (Modified) ENGINEER may with the and incorporated herein for all intents and
consent of OWNER alter the distribution of purposes, plus Reimbursable Expenses and
compensation between individual phases noted ENGINEER's Consultant's charges. if any.
herein to be consistent with services actually Additional Services shall not exceed S5.000.00
rendered, but shall not exceed the total cost not without the prior written consent of the Owner.
to exceed amount unless approved in writing by
the OWNER. 2. (Not Used).
3. The cost not to exceed includes C4.04 For Reimbursable Expenses
compensation for ENGINEER's ser\,ices and
services of ENGINEER's Consultants (with the A. (Modified) When not included in
exception of those outlined in paragraph C4.05), compensation for Basic Services under paragraph
if any. Appropriate amounts have been C4.01. OWNER shall pay ENGINEER for
incorporated in the cost not to exceed to account Reimbursable Expenses. Before the OWNER shall
Page I of 2 pages
Exhibit C- Basic Services With Detennined Scope--Cost not to exceed Method)
be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the B. External Reimbursable Expenses and
OWNER of any expense that exceeds SI.000 for ENGINEER's Consultant's Factors include
which the ENGINEER seeks reimbursement. ENGINEER's overhead and profit associated with
Reimbursable Expenses shall not exceed S 15,000.00 ENGINEER's responsibility for the administration of
without the prior written consent of the Owner. such services and costs.
B. (Modified) Reimbursable Expenses include C4.08 Other Provisions Concerning Pavnient
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings. Specifications, A. Progress Payments. The portion of the
Bidding Documents,and similar Project-related items amounts billed for ENGINEER's services which are
in addition to those required tinder Exhibit A, and, if identified in paragraphs C4.01 and C4.03, will be
authorized in advance by OWNER. based on the attached rate schedule for the
cumulative hours charged to the Project during the
C. The amounts payable to ENGINEER for billing period by all of ENGINEER's employees,
Reimbursable Expenses will be the Project-related plus Reimbursable Expenses and ENGINEER's
internal expenses actually incurred or allocated by Consultant's charges, if any.
ENGINEER, plus all invoiced external Reimbursable
Expenses allocable to the Project, the latter
multiplied by a Factor of 1.1, Mileage will be
charged at the IRS prescribed rate.
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'sCharaes
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of I.I. The consultant
charges shall not exceed the following amounts
specified for each of the following ser ices, unless
approved in writing by the OWNER. The charges
include the factor,and are as follows:
11) Surveving S 27,500,00
2) Geotechnical S 50,600.00
3) Structural S 24,200,00
4) Electrical S 7,700.00
C4.06 Direct Labor Costs
A. (Deleted)
B. (Deleted).
4.07 Factors
A. (Deleted)
Page 2 of 2 Pages
Exhibit C-All Other Services/Charges--Cost not to Exceed Method of Payment)
APPENDIX 1
TO EXHIBIT C
Title Fee per Hour
Principal S 143.07
Senior Project Manager S 122.04
Project Engineer S 109.64
CAD Designer S91.13
CAD Drafting 564.41
Administrative S84.71
Secretarial S63.22
Clerical 548.64
Page 1 of I Pages
Appendix I to Exhibit Q
This is EXHIBIT E. consisting of 2 pages, referred to in and
part of the Agreement bet-,reen OWNER and ENGINEER
for Professional Services dated k C 5
Initial:
OWNER
ENGINEER
NOTICE OF ACCEPTABILITY OF WORK
PROJECT-
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREENIENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To: OWNER
And To: CONTRACTOR
The undersigned hereby gixes notice to the above OWNER and CONTRACTOR that the completed Work
furnished and perforated by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof-
By:
Title:
Dated:
Page 1 of 2 Pages
Exhibit E-Notice of Acceptability of Work)
Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of E,IGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge.information,and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR'S work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S performance under the
Construction Contract nor an assumption of responsibility for any failure of the Contractor to furnish and
perform the work therunder in accordance with the Contract documents, unless ENGINEER knew or should
have known of such failure and failed to notify the Owner of such failure and take appropriate action so that the
same were corrected and brought into compliance with the Contract Documents.
Page 2 of 2 Pages
Exhibit K- Indemnification)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated I a Q
Initial-
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect insurance against claims for injuries to or death of persons or damages to property which may arise
out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or
Subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of
them may be liable.
The ENGINEER's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further,the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish
separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Commercial General Liability(CGL)
General Aggregate: S1,000,000
Products& Completed Operations: S 1,000.000
Personal & Advertising Injury: S 1.000,000
Per Occurrence: S500,000
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: S1,000,000
a. Coverage for"Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability S500.000
Waiver of Subrogation required
Errors&Omissions(E&O)
Limit: S1,000,000
a. For all engineers,and,'or design companies.
b. Claims-made fonn is acceptable.
C. Coverage will be in force for three(3)years after project is completed.
Page I of 2 Pages
Exhibit G -Insurance)
Upon execution of this contract, ENGINEER shall file with the OWNER %alid 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 OW\ER 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
liabilityand 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 famished to City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to City of Baytwvn's representative prior to
execution of this agreement.
f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to City of Baytown's representative.
Page 2 of 2 Pages
Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the agreement between OWNER and ENGINEER
for Professional Services dated LZ`'
Initial:
OW-tiER
ENGINEER
PROFESSIONAL AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO
AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO
ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT,
ARISING OUT OF, OR IN CONNECTION WITH THE WORK
DONE BY PROFESSIONAL UNDER THIS CONTRACT CAUSED
BY THE SOLE OR JOINT NEGLIGENCE OF PROFESSIONAL. IT
IS THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH PROFESSIONAL AND THE CITY, THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY PROFESSIONAL TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF
PROFESSIONAL'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, PROFESSIONAL FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE
INDEMNITY PROVIDED FOR IN THIS ARTICLE IX SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
Page I of 2 Pages
Exhibit K- Indetnnificationl
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 anv other contract or agreement, any
charter, or applicable state law. Nothing herein shall be construed so as to limit or
waive OWNER'S sovereign immunity. ENGINEER assumes full responsibility for
its work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and/or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with ENGINEER's work to be performed
hereunder. This release shall apply with respect to ENGINEER's work regardless
of whether said claims, demands, and causes of action are covered in whole or in
part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supercede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and/or expiration of this Agreement.
Page 2 of 2 Pages
Exhibit K - Indemnification)