Ordinance No. 10,528ORDINANCE NO. 10,528
AN ORDINANCE OF THE CITY COUNCLL OF THE CITY OF BAYTOW, TEXAS,
AUTHORIZING AN AGREEMENT WITH KlMLEY-HORN AND ASSOCIATES,
WC., FOR PROFESSIONAL SERVICES FOR THE DEVELOPMENT OF AN
AQUATIC FACILITIES MASTER PLAN; AUTHORTZTNG PAYMENT BY THE cIm OF BAYTOWN OF AN AMQ~JNT NOT TO EXCEED SIXTY-FIVE
THOUSAND AND NOllOO DOLLARS (565,000,OO); AND PROVIDING FOR THE
EFFECTIVE PATE THEW.0.F.
BE IT ORDAINED BY THE CITY COUNCTL OF THE CTTY OF BAYTOWN. TEXAS:
Section I: That the City Council of the City of Baytown. Texas. hereby authorizes the City
Manager to execute and the City Clerk to attest to an agreement !t Kimley-Born and Associaks, Inc.,
for professional services for the development of an Aquatic Facilities Master Plan. A ccopy of such
agreement is attached hereto as Exhibit "A" and incarporated herein far all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to KirnIey-
Ham and Associates, Inc., of the sum of SIXTY-FIVE THOUSAND AND NOllOO DOLLARS
($65,090.00), pursuant to the Agreement.
Section 3: That the City Manager is keby granted general authority tu approve any change
order involving a decrease or an increase in costs of TWENTY-FIVE THOUSAND AND NO1100
DOLLARS ($25,000.00) or less; however, the original contract price may not be increased by more than
twenty-five percent (25%) or decreased by more than twenty-five percent (25%) without the consent of
the contractor to such decrease.
Section 4: This ordinance shall take effect immediately from ad after its passage by the
City Council of the City of Baytown. 4
INTRODUCED, READ and PASSED by the affirmative e City Council of the City of
Baytown this the 25~ day of January, 2007.
APPROVED AF TO FORM:
s
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the _ day of January, 2007 ( "Effective Date ").
Between
City of Baytown ( "OWNER")
and
Kimley -Horn and Associates, Inc. ( "ENGINEER ")
OWNER intends to prepare an aquatic facilities master plan to guide programming, site selection(s), renovations,
and new construction of aquatic facilities for the OWNER. ( "Project ").
OWNER currently has two swimming pools — one at the Wayne Gray Sports Complex and one at N.C, Foote Park.
In 1998, an Aquatics Facility Study was prepared for OWNER. Since the completion of this study. the City of
Baytown and the surrounding areas have grown and a number of factors have changed including - additional area
providers and new aquatic recreation trends. Therefore, a new Aquatic Facilities Master Plan should be prepared to
document current conditions and to better plan for the aquatic recreation needs of the citizens of Baytown, Texas.
OWN-ER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1 of l 1
EXHIBIT A
r�
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 ............................................................................ .......................I....... 3
ARTICLE5 - OPIMONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost .......................................................................... ............................... 4
5.02 Designing to Construction Cost Limit .............................................................................. ............................... 4
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................. ............................... 4
6.01 Standards of Performance .................................................................................................. ............................... 4
6.02 Authorized Project Representatives ................................................................................... ............................... 5
6.03 Design without Construction Phase Services .................................................................... ............................... 5
6.04 Use of Documents .............................................................................................................. ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law ................................................................................................................. ............................... 6
6.08 Successors. Assigns. and Beneficiaries ............................................................................. ............................... 6
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................ ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 7
6.12 Notices ................................................................................................................................ ............................... 7
6.13 Survival ............................................................................................................................... ............................... 7
6.14 Severability ......................................................................................................................... ............................... 7
6.15 Waiver ................................................................................................................................ ............................... 7
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS .............................................................................................................. ............................... 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. ............................... 9
8.01 Exhibits Included ................................................................................................................ ............................... 9
8.02 Total Agreement ............................................................................................................... ............................... 10
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 11
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. (Deleted).
ARTICLE 2 - ONVNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and
compensation under this Agreement have been agreed to for
the preparation of a preliminary master plan report for 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 tetra
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted)
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, ENGINEER may
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, unless
such delay or suspension is caused in whole or in part by the
ENGINEER, its officers, agents, or employees. If Engineer
causes or contributes to the delay or suspension,
ENGINEERING shall have no right to seek additional
compensation.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.0I.A and
4.013, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth in Exhibit C.
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 periodically via
mail or email 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 oflnvoices. 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 the
required backup documentation therefor, the amounts due
ENGINEER will accrue interest at the rate set forth in
Section 2251.025 of the Texas Government Code (or the
maximum rate of interest permitted by law, if less) after the
30th day. ENGINEER may after giving seven days written
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. However, it is
expressly understood and agreed that ENGINEER will not
charge any interest or penalty as set forth herein on any
portion of an invoice that is disputed and/or withheld in
accordance with paragraph 4.02 and that ENGINEER will not
suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 11
payments will be credited first to principal and then to
interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination.
1. 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; provided all instruments of service have
been tendered to the OWNER.
2. (Deleted)
E. (Modified) Records of ENGINEER's Costs.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. However,
since ENGINEER has no control over the cost of labor,
materials, equipment, or services furnished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids, or actual
Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER. If OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. (Deleted)
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINEER's profession
practicing under similar circumstances at the same time and in
the same locality.
B. (Modified) ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. ENGINEER shall correct
such deficiencies without additional compensation except to
the extent such action is directly attributable to deficiencies in
OWNER - famished information upon which ENGINEER is
authorized to rely as provided in Section 6.0I.E.
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER shall serve as
OWNER's prime professional for the Project. ENGINEER
may employ such ENGINEER's Consultants as ENGINEER
deems necessary to assist in the performance or furnishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNER- mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to ONVNER'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
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Between Owner and Engineer for Professional Services
Page 4 of I 1
of all requirements, programs, instructions, reports, data, and
other information famished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
ENGINEER.
G. (Deleted).
H. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify. guarantee or
warrant the existence of conditions whose existence
ENGINEER cannot ascertain; provided, that ENGINEER has
exercised due diligence and was not otherwise required to
certify, guarantee or warrant the existence of such conditions.
I. (Deleted).
J, (Deleted)
K. (Deleted).
L. (Deleted).
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
party.
6.03 Design %%ithout Construction Phase Services
(Deleted).
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the Instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of'any termination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and /or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the ENGINEER,
its officers, and employees and sub - consultants, as well as
their successors and assigns.
B. (Modified) Copies of OWNER - furnished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator. the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -term
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 1 I
systems, or computer hardware differing from those used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies. the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
ENGINEER to further compensation at rates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G. "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense. provide additional
insurance coverage, increased limits, or revised deductibles
that are more protective than those specified in Exhibit G. If
so requested by OWNER, with the concurrence of
ENGINEER and if commercially available, ENGINEER
shall obtain and shall require ENGINEER's Consultants to
obtain such additional insurance coverage, different limits. or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 30 days
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating party: or
b. By ENGINEER upon seven days written
notice if ENGINEER is being requested by
OWNER to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
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
trp to, but in no case more than 60 days after the date
of receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located-
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors. administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.083 the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners. successors, executors,
administrators and legal representatives (and said assigns) of
such other party. in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of I 1
C. Unless expressly provided otherwise in this
Agreement:
I. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condition. In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may. at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: (i) retains appropriate
specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) wan-ants that the Site is in
full compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an
"arranger," `-operator," "generator," or '`transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Site in connection with ENGINEER's activities under this
Agreement.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
or by a commercial courier service. Additionally, notices
may be given via facsimile or by electronic mail if such notice
is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its complefion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken. and all remaining provisions shall continue
to be valid and binding upon OWNER and ENGINEER, who
agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the
intention of the stricken provision.
6.15 Waiver
A. Non - enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
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Between Owner and Engineer for Professional Services
Page 7 of 11
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated. which
are applicable to both the singular and plural thereof.
1. Deleted
2. Additional Services —The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement- -This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8
hereof.
4. Application for Payment - -The form acceptable
to ENGINEER which is to be used by Contractor in
requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents.
5. Asbestos --Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
fibers into the air above current action levels established
by the United States Occupational Safety and Health
Administration.
6. Basic Services - -The services to be performed
for or famished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Deleted
8. Deleted
9. Deleted
10. Deleted
11. Deleted
12. Deleted
13. Deleted
14. Deleted
15. Deleted
16. Deleted
17. Deleted
18. Deleted
19. Documents- -Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or 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. Deleted
22. Effective Date of the Agreement - -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGIIIEER's Consultants -- Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
24. Deleted
25. Deleted
26. Deleted
27. Hazardous Environmental Condition- -The
presence at the Site of Asbestos. PCB's. Petroleum,
Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
28. Hazardous JVaste —The term Hazardous Waste
shall have the meaning provided in Section 1004 of the
Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.
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Between Owner and Engineer for Professional Services
Page 8 of l 1
29. Laws and Regulations; Laws or Regulations —
Any and all applicable laws, rules. regulations.
ordinances. codes, standards, and orders of any and all
governmental bodies, agencies. authorities, and courts
having jurisdiction.
30. PCB's -- Polychlorinated biphenyls.
31. Petroleum — Petroleum including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14,7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline,
kerosene, and oil mixed with other non - Hazardous Waste
and crude oils.
32. Radioactive Materials — Source, special nuclear.
or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.
33. Deleted
34. Reimbursable Expenses- -The expenses incurred
directly by ENGINEER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
35. Deleted
36. Samples — Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
37. Deleted
38. Site - -Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which
the Work is to be performed, rights -of -way and
easements for access thereto, and such other lands
furnished by OWNER which are designated for use of
Contractor.
39. Deleted
40. Deleted
41. Deleted
42. Deleted
43. JYork —The entire completed construction or the
various separately identifiable parts thereof required to be
provided under the Contract Documents with respect to
this Project. Work includes and is the result of
performing or furnishing labor, services, and
documentation necessary to produce such construction
and furnishing, installing, and incorporating all materials
and all equipment into such construction, all as required
by the Contract Documents.
44. Deleted
45, Written Amendment - -A written amendment of
the Contract Documents signed by OWNER and
Contractor on or after the Effective Date of the
Construction Agreement and normally dealing with the
non - engineering or non - technical rather than strictly
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
five (5) pages.
B. Exhibit B. "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C. "Payments to Engineer for Services and
Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties. Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, "Notice of Acceptability of Work," is not
used.
F. Exhibit F, `Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H. "Dispute Resolution," is not used.
I. Exhibit L "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9of it
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 11
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 1 l
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITYOF BAYTOWN
Signature:
Printed Name: Gary Jackson
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02.A):
Name: Scott Johnson
Title: Director of Parks and Recreation
Phone Number: (281) 420 -6599
Facsimile Number: (281) 420 -6586
E -Mail Address: scott.johnson @baytown.org
ENGINEER: KIMLEY -H N AND ASSOCIATES,
INC.
Signature: Cti
Printed Name: Thomas L. Whalen
Title: Vice President
Date Signed: 7
Address for giving notices:
12700 Park Central Drive, Suite 1800
Dallas, Texas 75251 -1516
Designated Representative (paragraph 6.02.A):
Name: Mark C. Hatchel, RLA, ASLA.
Title: Associate /Senior Project Manager
Phone Number: (972) 770 -1350
Facsimile Number: (972) 239 -3820
E -Mail Address: Mark.Hatchel @kimley- hom.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I 1 of I 1
This is EXHIBIT A, consisting of 3 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER's Services
Article 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 1 -- BASIC SERVICES (Modified)
A1.01 Conceptual Design Phase
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER: and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend meetings with OWNER and OWNER'S designated boards, commission and/or
governing body to receive input into OWNER'S requirements for the Project and evaluate potential
solutions available to OWNER-
6. (Modified) Perform or provide the following additional Conceptual Design Phase tasks or deliverables:
Task l: Goals, Objectives, Public Meetings (30 Days).
Preliminary Meetings ('Trip One)
a. Needs Analysis:
ENGINEER shall meet with the OWNER'S staff, plus any designated special interest or
community groups and/or individuals involved in the Project, to analyze needs and
determine objectives. ENGINEER will conduct individual interviews or facilitated focus
groups with (for example) local education administrators and/or athletic directors,
Chamber of Commerce representatives, business leaders, private and public recreation
providers, health professionals. competitive swim groups, swim coaches, instructors,
activity programmers, youth and seniors groups, and others as requested by the OWNER
in order to ascertain existing levels of service and the perceived needs of various user
groups in the community.
The discussions will include images and /or video presentations with commentary on
features of new aquatic centers from across the country, background information on
historic and contemporary issues in the industry. and an open -forum question- and - answer
Page 1 of 5 Pages
(Exhibit A -- ENGINEER's Services)
session to discuss priorities and needs of those individuals and groups attending the
meeting. A matrix of program activities will be developed and discussed to prioritize
programming and facility features.
ENGINEER will use the results of the interviews and public workshop to develop a
needs profile which will be used to design a program statement.
b. Programming:
Based upon the needs analysis. ENGINEER shall develop a program for the proposed
aquatic facilities (including other water activities such as spray grounds) will be
developed from the community meetings, OWNER'S staff, facilitated focus groups, and
interviews. These programs will reflect the desires submitted by these groups.
C. Schematic Designs:
ENGINEER will provide a generic schematic plan (concept) of each aquatic facility type
identified through the needs analysis and programming. The purpose of the plans will be
to illustrate ways to organize the spaces in a functional arrangement and to confirm that
the facility footprint will contain the areas proposed in the design program. Concepts
with varying space requirements to accommodate projected capacity will influence
different budget amounts. (For example: combining a leisure pool with a competitive
pool in the same body of water will impact the budget differently when compared to
planning these two areas in separate bodies of water.)
Based on results of the meetings, needs analysis, and programming sessions, the
schematic concepts may include:
1) Neighborhood wading pools, spray pools. and beaches
2) Swimming pools for competition
3) Family aquatic center — water park concept to include waterslides, spray
parks, lazy river, etc.
a. A comparison of indoor versus outdoor facilities
b. Observations of combination indoor / outdoor facility
Second Series Meeting (Trip Two)
ENGINEER will participate in a second series of meetings with the public and OWNER'S staff to
confirm and refine the design program. Topics of these meetings will include potential locations,
community groups interested in using the facilities, recreational activities citizens would like to
have, and the needs of staff as related to overall City of Baytown aquatic programs and
operations. Following the meeting. the Consultant will make final revisions to the selected design
program and schematic concepts and forward them to the OWNER.
Task II: Concept Development (30 Days)
a. Conceptual Design:
1. ENGINEER will prepare final conceptual drawings in CADD of the desired
facilities for each proposed aquatic facility location.
2. These conceptual drawings will illustrate what the concepts could look like
built. The spaces will be identified on the drawings and the purpose will be to
illustrate the committee "vision" of each concept.
3. Plan view colorings of the concepts will be created to facilitate the marketing of
the project to key individuals.
b. Projection of Probable Development Costs:
ENGINEER will prepare a detailed Opinion of Probable Construction Cost for each
option of the proposed renovations to existing facilities and/or new facilities. Each
facility will be individually itemized with an opinion of cost. Recent bid figures of
similar projects will be used with national estimating guides and local cost adjustment
Page 2 of 5 Pages
(Exhibit A -- ENGINEER's Services)
factors. The construction cost figures will be supplemented by a development cost
factor, which will include such indirect costs as professional fees, contingencies.
overhead and profit, document reproduction, advertisement for bids, and all anticipated
expenses related to the administration of the project. The sum of these two cost figures
will be the total project cost so that the OWNER will have a comprehensive overview in
making an informed decision to move forward.
Task III: Financial Impact Study (30 Days)
ENGINEER shall develop a financial impact study as an opinion of the facility financial
performance and an opinion of suggested operations for each planned facility. The study will
include the following elements:
a. Economic Impact:
I) This part of the study incorporates an analysis of the economic impact of the
facilities to the parks and recreation department. In this segment of the study
the following will be researched, analyzed, and reported:
a. Demographic research will be completed to appropriately evaluate the
proposed facilities. Analysis will include population and age
distribution, income, weather analysis, and local economic
considerations that could affect the project's viability.
b. An opinion of probable expenses will be developed and it will include
demands on labor, contract services, supplies, utilities, maintenance,
and funds needed for future repair.
C. An opinion of revenue will be developed. Market area demographics
for population, age. and income will be analyzed to understand the
economics of the region and the level of discretionary income that may
be used for leisure and competitive aquatic activity.
d. Revenue projections will be derived from the likely market penetration,
special user groups through creative programming, and the potential of
income. The analysis may include a study of the influence of tourism.
This analysis will incorporate an opinion of attendance and offer
recommendations of a competitive fee structure for all facilities.
Operational Impact
1. This part of the study incorporates an analysis of the operational impact of the
facility to the parks and recreation department. In this segment of the study the
following will be researched, analyzed, and reported:
a. A facility management outline will be completed that includes a facility
operating schedule, facility capacity limits, organization chart, job
descriptions, and a wage structure for all employees.
b. Area aquatic user groups will be identified to determine organizations
that will contribute to filling available capacity in the facility.
C. A marketing program will be prepared to aid in creatively promoting
the facility once the project is completed.
(Modified) Prepare a preliminary master plan report (the "Report") which will, as appropriate, contain
the information specified in Al.0l.A.6 as well as schematic layouts, sketches, schedule of events, and
conceptual design criteria with appropriate exhibits to indicate the agreed -to requirements,
considerations involved. and those alternate solutions available to OWNER which ENGINEER
recommends. This Report will be accompanied by ENGfNEER's opinion of Total Project Costs for
each solution which is so recommended for the Project with each component separately itemized,
including the following, which will be separately itemized: opinion of probable Construction Cost,
allowances for contingencies and for the estimated total costs of design, professional, and related
services provided by ENGINEER and, on the basis of infonnation furnished by OWNER, allowances
for other items and services included within the definition of Total Project Costs. The Report shall
summarize the findings of Tasks I, II, and III as described above. The Report shall contain
Page 3 of 5 Pages
(Exhibit A -- ENGINEER's Services)
professionally written text and graphic exhibits documenting methodology, meeting notes, program
elements, and final conceptual designs for each proposed location.
8. Furnish five (5) review copies of the Draft Report to OWNER within seventy-five (75) calendar days
of authorization to begin services and attend meetings as necessary to review it with OWNER.
9. Revise the Draft Report in response to OWNER's and other parties' comments, as appropriate, and
furnish ten (10) final copies of the revised Report to the OWNER within fifteen (15) calendar days
after completion of reviewing it with OWNER.
10. (modified) Attend meeting(s) of the City Council to present the Report, answer any questions and
obtain the City Council's acceptance of the Report.
B. (Modified) ENGINEER's services under the Conceptual Design Phase will be considered complete on the
date when the final copies of the revised Report have been delivered to and accepted by OWNER.
A 1.02 Final Design Phase (Deleted in its entirety)
A1.03 Bidding or Negotiating Phase (Deleted in its entirety)
A1.04 Construction Phase (Deleted in its entirety)
A 1.05 Post - Construction Phase (Deleted in its entirety)
PART 2 — ADDITIO \'AL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
A. If authorized in writing in advance 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: provided they are not already included as part of the Basic Services and they have been approved
in writing by the OWNER prior to their performance.
(Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements: review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information furnished by OWNER.
3, (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including, but not limited to,
changes in size, OWNER's schedule, or character of construction; and revising previously accepted
studies, reports, Drawings. Specifications, or Contract Documents when such revisions are required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
4. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A1.0I.A.4.
Page 4 of 5 Pages
(Exhibit A — ENGINEER's Services)
5. Services required as a result of OWNER's providing incomplete or incorrect Project information with
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
Section 6.01.E of the Agreement.
6. Providing renderings or models for OWNER's use.
7. Undertaking investigations and studies including, but not limited to, 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 -of -town travel required of ENGINEER other than for visits to the Site or OWNER's
office.
11. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to. construction management, cost estimating, project peer review,
value engineering, and constructability review requested by OWNER; and performing or furnishing
services required to revise studies. reports, Drawings, Specifications, or other Bidding Documents as a
result of such review processes.
12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
13. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
14. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.0 LG of the Agreement.
15. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement.
16. Property descriptions.
17. (Modified) Property, easement, right -of -way, and other special surveys or data, including establishing
relevant reference points.
18. (Added) Environmental assessments, audits. investigations and unpact statements, and other relevant
environmental or cultural studies as to the Project, the Site, and adjacent areas.
A2.02 Required Additional Services (Deleted)
Page 5 of 5 Pages
(Exhibit A -- ENGINEER's Services)
This is EXHIBIT B, consisting of ? pages, referred to in and
part of the Agreement behveen OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and famish copies of OWNER's standard
forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site.
C. (Modified) Following ENGINEER's assessment of initially- available Project information and data and upon
ENGINEER's written request, famish 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, if any.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches. Drawings. Specifications. proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
H. (Deleted).
Page I of 2 Pages
(Exhibit B — OWNER's Responsibilities)
I. (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 constructability review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
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
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 -- PAYMENTS TO THE ENGINEER
C4.01 For Basic Services Having A Determined
Scope — Cost not to Exceed Method of
Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of 560.000, based upon the rate
schedule, which is attached as Appendix I of
Exhibit C and incorporated herein for all intents
and purposes. It is expressly understood and
agreed that the cost of each phase of the service
shall at no time exceed the corresponding
amount for each Task:
Task I ............................. .....................$20,000.00
Task II ................. ............................... $20,000.00
Task III ......................... .....................$15,000.00
Presentat ion .......... ..............................$ 5,000.00
2, (Modified) ENGINEER may with the
consent of OWNER alter the distribution of
compensation between individual tasks noted
herein to be consistent with services actually
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by
the OWNER.
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants, if any.
Appropriate amounts have been incorporated in
the cost not to exceed to account for labor,
overhead, profit, and Reimbursable Expenses.
4. Deleted.
Initial:
OWNER
ENGINEER
5. The portion of the amount billed for
ENGINEER's services will be based upon total
services actually completed during the billing
period.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for
Additional Services as follows:
L General. For services of ENGINEER's
employees engaged directly on the Project
pursuant to paragraph A2.0I 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 based upon the actual
hours worked and the rate schedule, which is
attached as Appendix l of Exhibit C and
incorporated herein for all intents and purposes,
plus Reimbursable Expenses and ENGINEER's
Consultant's charges. if any. No Additional
Services shall be preformed without the prior
written consent of the Owner.
2. (Not Used).
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01. OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the
OWNER of any expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope — Cost not to exceed Method)
Reimbursable Expenses shall not exceed $5,000 for
the Project.
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 based upon the rate schedule for
reimbursable expenses, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of 1.1.
D. (Deleted).
E. (Deleted)
C4.05 For ENGINEER's Consultant's Charges
(Deleted)
C4.06
Direct Labor Costs
A.
(Deleted).
B.
(Deleted).
4.07 Factors
A.
(Not used).
B.
(Not used).
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
identified in paragraphs C4.01 and C4.03, will be
based on the rate schedule for the cumulative hours
charged to the Project during the billing period by all
of ENGINEER's employees, plus Reimbursable
Expenses.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Cost not to Exceed Method of Payment)
APPE>\DIX 1 OF EXHIBIT C
RATE SCHEDULE
CATEGORY HOURLY RATE
Senior Assoc iate/Princi al S 150.00
Analyst/Park Planner $ 100.00
Secretarial S 50.00
Page 1 of 1 Pages
(Appendix 1 of Exhibit C —Hourly Rates)
APPENDIX 2 OF EXHIBIT C
REIMBURSEbIENT OF COSTS
Reproduction and Deliveries: Cost plus 10%
Mileage: IRS Rate
Page 1 of 1 Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
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 minimum coverage amounts
required in this contract:
Commercial General Liability (CGL)
General Aggregate: $1,000,000
Products & Completed Operations: $1,000.000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $500,000
a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $500.000
a. For all engineers, and/or design companies.
b. Claims -made form is acceptable.
Page 1 of 2 Pages
(Exhibit G - Insurance)
c. Coverage will be in force for one (1) year after project is completed.
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.
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. The City of Baytown, its officers, agents and employees are to be added as Additional Insured to the
commercial general liability and business automobile policies.
e. Upon request of and without cost to the City of Baytown, certified copies of all insurance policies and/or
certificates of insurance shall be furnished to the City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to the City of Baytown's representative prior to
execution of this agreement.
f. Upon request of and without cost to the City of Baytown, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to the 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 ENGMTER
for Professional Services dated
Initial:
OWNER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND THE OWNER, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO
AS THE "OWNER ") FROM A-ND 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 DAMAGES OF
ANY KIND, OR FOR ANY BREACH OF CONTRACT, ARISING
OUT OF, OR IN CONNECTION WITH THE SERVICES
PERFORMED BY ENGINEER UNDER THIS CONTRACT TO
THE EXTENT CAUSED BY THE ENGINEER'S SOLE OR JOINT
NEGLIGENCE. IT IS THE EXPRESSED INTENTION OF THE
PARTIES HERETO, BOTH ENGINEER AND THE OWNER, THAT
THE INDEMNITY PROVIDED FOR IN THIS 'PARAGRAPH IS
INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT
THE OWNER FROM THE CONSEQUENCES OF ENGINEER'S
OWN NEGLIGENCE, WHETHER THAT NEGLIGENCE IS THE
SOLE OR A CONCURRING CAUSE OF THE RESULTING
INJURY, DEATH OR DAMAGE. SUCH INDEMNITY SHALL
NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE
PERSONAL INJURY, DEATH, OR DAMAGE OF ANY KIND
THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE
OF THE OWNER OR ANY THIRD PARTY FOR WHOM THE
ENGINEER IS NOT LEGALLY RESPONSIBLE. IN THE EVENT
THAT ANY ACTION OR PROCEEDING 1S BROUGHT AGAINST
THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED,
ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND
THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED
FOR IN THIS EXHIBIT K SHALL SURVIVE THE TERMINATION
OR EXPIRATION OF THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have
granted by the terms of this Contract or any other contract or agreement, any
Page I of 2 Pages
(Exhibit K - Indemnification)
If '01
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)