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Ordinance No. 11,054ORDINANCE NO. 11,054 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH COSTELLO, INC., FOR ENGINEERING SERVICES ASSOCIATED WITH THE JULIE ANN VILLA DRAINAGE PROJECT: AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED NINE'T'Y -EIGHT THOUSAND FOUR HUNDRED SIXTY AND NO /100 DOLLARS ($98,460.00): MAKING OTHER PROVISIONS RELATED THERETO, AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ****************************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ** BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with Costello, Inc., for engineering services associated with the Julie Ann Villa Drainage Project. A copy of the agreement is attached hereto, marked Exhibit "A." and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes payment to Costello, Inc.. in an amount not to exceed NINETY -EIGHT THOUSAND FOUR HUNDRED SIXTY AND NO/] 00 DOLLARS ($98,460.00) for engineering services in accordance with the agreement authorized in Section 1 hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY -FIVE THOUSAND AND NO/ 100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent (25 %). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INT �Cl Baytol , O t I —\ F A-AIAT: KA READ and PASSED by the affirmative v of January. 2009. LL, APPROVED AS TO FORM: Clerk ACIO RAMIREZ, SR., 06,JktIorney S of, the City Council of the City of ARLOS. M \ 1,cobsrvl\Legal\Karen \Files\City Council\Ordinances\2009January 22\AuthorizeC ostelloA; recmentdJulieAnnVillaDrainageProject aloe STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of the /7 day of {p,�jr(,(Cj,%� , 2009 ("Effective Date"). Between The City of Baytown ("OWNER") and COSTELLO, INC. ("ENGINEER"). OWNER intends to engage ENGINEER to perform engineering services related to design and associated services for drainage improvements for the Julie Ann Villa Subdivision and related site work (the "Project") for and on behalf of the OWNER. Such services shall include, but not be limited to, the following: ➢ Preliminary Engineering Phase, ➢ Final Design Phase, ➢ Construction Documents, ➢ Bid/Permit, and ➢ Construction Administration. The Project will be a two phase program. Phase I of the Project includes the implementation of Alternative 2 of the Julie Ann Villa Drainage Study completed in December 2007. Phase II of the Project will help provide a more regional drainage solution since it increases the capacity of the Old Needlepoint Road ditch, which will provide additional relief for the northern portion of the subdivision and adjacent properties affected by high water levels in the existing ditch. OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Consultant for Professional Services Page 1 of 12 TABLE OF CONTENTS bag ARTICLE 1 - SERVICES OF ENGINEER 3 1.01 Scope 3 ARTICLE 2 - OWNER'S RESPONSIBILITIES 3 2.01 General 3 ARTICLE 3 - TIMES FOR RENDERING SERVICES 3 3.01 General 3 3.02 Suspension 3 ARTICLE 4 - PAYMENTS TO ENGINEER 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant 3 4.02 Other Provisions Concerning Payments 3 ARTICLE 5 - OPINIONS OF COST 4 5.01 Opinions of Probable Construction Cost 4 5.02 Designing to Construction Cost Limit 4 5.03 Opinions of Total Project Costs 4 ARTICLE 6 - GENERAL CONSIDERATIONS 4 6.01 Standards of Performance 4 6.02 Authorized Project Representatives 5 6.03 Design without Construction Phase Services 5 6.04 Use of Documents 5 6.05 Insurance 6 6.06 Termination 6 6.07 Controlling Law 7 6.08 Successors, Assigns, and Beneficiaries 7 6.09 Dispute Resolution 7 6.10 Hazardous Environmental Condition 7 6.11 Allocation of Risks 7 6.12 Notices 7 6.13 Survival 8 6.14 Severability 8 6.15 Waiver 8 6.16 Headings 8 ARTICLE 7 - DEFINITIONS 8 7.01 Defined Terms 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 11 8.01 Exhibits Included 11 8.02 Total Agreement 11 Standard Form of Agreement Between Owner and Consultant 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. (Not Used). ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) ENGINEER's services and compensation under this Agreement have been agreed to for the design of the Project. ENGINEER's obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Not Used). C. (Modified) For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (Modified) If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if OWNER delays ENGINEER's services, ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement. If during such seven-day period, OWNER gives written authorization to proceed or ENGINEER'S services are no longer delayed by OWNER, ENGINEER may not suspend services under this Agreement. B. (Modified) If ENGINEER suspends services, 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 such suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. (Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.01.B, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and its 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 delinquent amount shall accrue interest at the rate specified in section 2251.025 of the Texas Government Code. 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 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. D. Payments Upon Termination. In the event of any termination under section 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. (Not Used) 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 (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 services to be performed under this Agreement will be the care and skill ordinarily used by members of the applicable disciplines, including, but not limited to, architects and professional engineers, practicing under similar circumstances at the same time and in the same locality. B. (Modified) All professionals performing services under this Agreement shall be responsible for the technical accuracy of their services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER -furnished information upon which ENGINEER is authorized to rely as provided in Section 6.01.E. C. ENGINEER shall perform or furnish professional engineering and related services in all phases of the Project to which this Agreement applies. Such professionals shall be appropriately licensed and/or registered to practice in the State of Texas. ENGINEER shall serve as OWNER's prime professional for the Project. ENGINEER shall employ such professionals as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any professional unacceptable to ENGINEER. D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER -mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 E. (Modified) OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to ENGINEER pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. Prior to the commencement of the Construction Phase, OWNER shall notify ENGINEER of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that ENGINEER will be requested to provide to OWNER or third parties in connection with the Project. OWNER and ENGINEER shall reach agreement on the terms of any such requested notice or certification, and OWNER shall authorize such Additional Services as are necessary to enable ENGINEER to provide the notices or certifications requested. H. (Modified) ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence ENGINEER cannot ascertain; provided, that ENGINEER has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's famishing and performing the Work. J. (Modified) ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to fumish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve ENGINEER from liability for any such failure about which ENGINEER knew or should have known existed in the exercise of ENGINEER's services under this Agreement. K. (Modified) ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or any other persons (except ENGINEER's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or furnished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03(Not Used) 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 its 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 Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 12 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 appropriate professional. Files in electronic media format of text, data, graphics, or of other types that are furnished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60-day acceptance period. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format, ENGINEER makes no representations as to long-term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER's sole risk and OWNER hereby releases ENGINEER from any liability associated solely with the reuse of the Documents. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require its 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 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. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.B the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.0 shall appear in the Contract Documents. 6.09 Not Used. 6.10 Hazardous Environmental Condition A. OWNER represents to ENGINEER that to the best of its knowledge a Hazardous Environmental Condition does not exist. B. (Modified) OWNER has disclosed to the best of its knowledge and belief to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C. (Modified) If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER on or before the next business day of the same. D. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Environmental Condition. In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E. OWNER acknowledges that ENGINEER is performing professional services for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the Site in connection with ENGINEER's activities under this Agreement. F. If ENGINEER's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGINEER's terminating this Agreement for cause on 30 days' notice. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.12 Notices A. (Modified) Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. Additionally, notices may be given via facsimile or by electronic mail if such notice is also given personally, or by registered or certified mail or by a commercial courier service. All notices shall be effective upon the date of receipt. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of 12 6.13 Survival A. (Modified) All express representations, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 6.15 Waiver A. Non -enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof: 1. Addenda --Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional Services --The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement --This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment --The form acceptable to ENGINEER which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos --Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services --The services to be performed for or famished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Bid --The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents --The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Change Order --A document recommended by ENGINEER, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. 10. Construction Agreement --The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. 11. Construction Contract --The entire and integrated written agreement between the OWNER and Contractor concerning the Work. 12. Construction Cost --The cost to OWNER of those portions of the entire Project designed or specified by ENGINEER. Construction Cost does not include costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 13. (Modified) Contract Documents --Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 12 Agreement between OWNER and Contractor and all documents referenced therein, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, insurance documents the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and professional's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price --The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times --The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Final Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 16. Contractor --An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period --The time after Final Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Final Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective --An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment. 19. Documents --Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drawings --That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 21. Effective Date of the Construction Agreement -- The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement --The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. 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 its Consultants. 24. Field Order --A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25. Final Completion shall mean that all work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to subcontractors have been made, all documentation and warranties have been submitted, all closeout documents have been executed and approved by the OWNER, and the Project has been finally accepted by the OWNER. 26. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 27. Hazardous Environmental Condition --The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste --The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 29. Laws and Regulations; Laws or Regulations -- Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's--Polychlorinated biphenyls. 31. Petroleum --Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 32. Radioactive Materials --Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings --The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses --The expenses incurred directly by ENGINEER in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 35. Resident Project Representative --The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples --Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Shop Drawings --All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to ENGINEER to illustrate some portion of the Work. 38. Site --Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications --That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion --The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 41. Supplementary Conditions --That part of the Contract Documents which amends or supplements the General Conditions. 42. (Modified) Total Project Costs --The sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights -of -way, compensation for damages to properties, OWNER's costs for legal, accounting, insurance counseling or auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 43. Work --The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Work Change Directive --A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 45. Written Amendment --A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non -architectural 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," is not used. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. I. Exhibit I, "Allocation of Risks," is not used. J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 IN WIT executed indicat s Agree on pa SON C. BR Titl-. City Manager Date Signed: HEREOF, the parties hereto have ent, the Effective Date of which is ACK 09//9/09 Address for giving notices: P.O. BOX 424 BAYTOWN, TEXAS 77422-0424 Designated Representative (paragraph 6.02.A): RICHARD E. CARTER, P.E. Title: Director of Engineering Phone Number: (281) 420-7154 Facsimile Number: (281) 420-6586 E-Mail Address: dick.carter@baytown.org ENGINEER: COSTELLO, INC. Printed Name S \',./+i-c% C. COS T-`1..(-v Title �-�� S Date Signed / — - t7 7 Address for giving notices: 9990 RICHMOND AVENUE, SUITE 450 HOUSTON, TEXAS 77042 Designated Representative (paragraph 6.02.A): SAM KRUSE, P.E. Title: Manager Municipal Services Phone Number: (713) 783-7788 Facsimile Number: (713) 783-3580 E-Mail Address:: skruse@coseng.com 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 ER and ENGINEER for Professional Services dated ENGINEER's Services Inial: OWNER ENGINEER S Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART 1 -- BASIC SERVICES (Modified) A1.01 Preliminary Engineering 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. 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. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's requirements for the Project. 6. (Modified) Attend meetings with OWNER and OWNER'S consultants, designated boards commissions, and/or city council to receive input into OWNER'S requirements for the Project and evaluate potential solutions available to OWNER. 7. Perform or provide the following additional Preliminary Engineering Phase tasks or deliverables: a. Review available existing public and private paving and utility information included in as - built drawings for Julie Ann Villa Subdivision; b. Contact any pipeline companies that are involved to obtain information on the existing facilities and requirements which may impact the Project. c. Provide a complete design survey for the anticipated storm sewer relief and diversion routes including required topography and cross sectional information. The Survey shall provide complete horizontal and vertical control as well as topographic information for construction of the proposed outfall storm sewer, ditch expansion, ditch cleanout and appurtenances. d. Provide a geotechnical investigation (under a subconsultant agreement with Terracon, Inc.) for the proposed improvements. Page 1 of 8 pages (Exhibit A — Engineer's Services) 8. (Modified) Prepare a preliminary report of 50% plans for the proposed storm improvements (the "Report") which will, as appropriate, contain schematic layouts illustrating the scale and relationship of the components, 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. Preliminary selections of construction materials shall be noted on the drawings or otherwise described in writing in the Report. This Report will be accompanied by ENGINEER's opinion of Total Project Costs for each solution which is so recommended for the Project with each component separately itemized, including the following, which will be separately itemized: opinion of probable Construction Cost, allowances for contingencies and for the estimated total costs of design, professional, and related services provided by ENGINEER and, on the basis of information furnished by OWNER, allowances for other items and services included within the definition of Total Project Costs. 9. Furnish three (3) review copies of the Report to OWNER within seventy-five (75) calendar days of authorization to begin services and review it with OWNER. 10. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish five (5) final copies of the revised Report to the OWNER within ten (10) calendar days after completion of reviewing it with OWNER. B. (Modified) ENGINEER's services under the Preliminary Engineering Phase will be considered complete on the date when the final copies of the revised Report have been delivered to and accepted by OWNER. A1.02 Final Design Phase A. Upon written authorization from OWNER, ENGINEER shall: 1. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, relationships, forms size and appearance of the Project by means of plans, profiles, construction details and specifications together with the extent and character of the Work to be performed and furnished by Contractor, including the quality levels for major materials. Specifications will be prepared, where appropriate, in conformance with the 16-division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and ENGINEER. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities. 3. Perform or provide the following additional Final Design Phase tasks or deliverables: a. Coordinate Project with Chambers County, Chambers County MUD #1 and representatives of the Julie Ann Villa Home Owner's Association. 4. Advise OWNER of any adjustments to the Project schedule and the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER, itemized as provided in A1.01.A.8. 5. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any time the ENGINEER's estimate of the probable Construction Cost or Total Project Costs exceed the OWNER's budget. 6. Prepare storm water pollution prevention plan and traffic control plan; Page 2 of 8 pages (Exhibit A — Engineer's Services) 7. Provide six (6) full-size sets of 90% documents for the OWNER's review and comment within forty-five (45) calendar days of authorization to begin services and review it with OWNER; 8. Revise the documents in response to OWNER's and other parties' comments, as appropriate; 9. Provide three full-size sets of 100% Bidding Documents for the OWNER's review and comment within thirty (30) calendar days of after receiving OWNER's comments on the 90% documents; and 10. Revise the documents in response to OWNER's and other parties' comments, as appropriate, and furnish fifteen (15) final copies of the revised 100% Bidding Documents and a revised opinion of probable Construction Cost to the OWNER within ten (10) days after completion of reviewing 100% Bidding Documents with OWNER B. (Modified) ENGINEER's services under the Design Development Phase will be considered complete on the date when the final copies of the revised documents have been delivered to and accepted by OWNER. Al .03 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Design Development Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work. 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 Conference and the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. 5. (Added) Assist in connection with Bid protests, rebidding, or re -negotiating contracts for construction, materials, equipment, or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A1.04 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01, if any. Page 3 of 8 pages (Exhibit A — Engineer's Services) 3. Pre -Construction Conference. Participate in a Pre -Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, ENGINEER will determine if Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the Work. b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable ENGINEER to better carry out the duties and responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and, in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's fumishing 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 Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. Page 4 of 8 pages (Exhibit A — Engineer's Services) 9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. 10. Substitutes and "or -equal." Evaluate and determine the acceptability of substitute or "or -equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. 11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. 12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER, based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph A1.04.A.5.a are expressly subject to the limitations set forth in paragraph A1.04.A.5.b and other express or general limitations in this Agreement and elsewhere. b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented that observations made by ENGINEER to check the quality or quantity of Contractor's work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including final payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions Page 5 of 8 pages (Exhibit A — Engineer's Services) 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. Other Services. a. Provide assistance in connection with the testing and adjusting of Project equipment or systems. b. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and systems. c. Assist OWNER in developing procedures for control of the operation and maintenance of, and record keeping for Project equipment and systems. d. 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. 15. Contractor's Completion Documents. a. (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 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. b. ENGINEER shall transmit these documents to OWNER within ten (10) days of receipt of documents from Contractor. c. (Added) Preparing and furnishing to OWNER Record Drawings on mylar showing appropriate record information based on Project annotated record documents received from Contractor. 16. Inspection. 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 finally complete. ENGINEER shall prepare a punch -lists as necessary for the Work to achieve final completion. 17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that to the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due diligence, the Work is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to the Contractor. 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 Page 6 of 8 pages (Exhibit A — Engineer's Services) 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. PART 2 — ADDITIONAL SERVICES A2.01 Additional 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. (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. 3. (Modified) Services resulting from OWNER's request to evaluate additional Phase altemative solutions beyond those identified in paragraph A1.01.A.4. 4. 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. 5. Providing renderings or models for OWNER's use. 6. 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. 7. Furnishing services of ENGINEER's Consultants for other than Basic Services. 8. Services attributable to more prime construction contracts than specified in paragraph A1.03.C. 9. Services during out-of-town travel required of ENGINEER other than for visits to the Site or OWNER's office. 10. 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 architectural, and constructibility 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. 11. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current Laws and Regulations. Page 7 of 8 pages (Exhibit A — Engineer's Services) 12. (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). 13. Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.O1.G of the Agreement. 14. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. 15. Property descriptions. 16. (Modified) Property, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 17. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 18. (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. PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance Not Included A2.02 Required Additional Services Not Included Page 8 of 8 pages (Exhibit A — Engineer's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between,�WN R. and ENGINEER for Professional Services dated OWNER's Responsibilities Ini OWNER ENGINEER 5 -c Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. (Modified) Following 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. (Not Used). 2. (Not Used). 3. (Not Used). 4. (Not Used). 5. (Not Used). 6. (Not Used). D. (Not Used). E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as the OWNER determines is necessary. F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as required for ENGINEER to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. (Not Used). Page 1 of 2 pages (Exhibit B - OWNER's Responsibilities) I. (Not Used). 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 architectural, and constructability review. K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust 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 OWN ' < n s 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 $89,000.00, based upon the rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated herein for all intents and purposes. The cost not to exceed does not include those Engineer's Consultant's charges as provided below in this Article 4, Subparagraph C4.05. Additionally, the cost not to exceed will be distributed at the completion of each of the phase in an amount not exceeding the following for each task: 1. Preliminary Design Phase $ 48,180.00 2. Design Phase $ 21,820.00 3. Bidding/Negotiating Phase $ 5,200.00 4. Construction Phase $ 13,800.00 2. (Modified) ENGINEER may with the consent of OWNER alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total cost not to exceed amount unless approved in writing by the OWNER. 3. The cost not to exceed includes compensation for ENGINEER's services and services of its Consultants (with the exception of those outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in Initi 0 ER ENGINEER 3« the cost not to exceed to account for labor, overhead, profit, and Reimbursable Expenses. 4. Not Used. 5. The portion of the amount billed for ENGINEER's services will be based upon total services actually completed during the billing period. C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor Method of Payment A. (Not Used). C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. General. For services of ENGINEER's employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A of the Agreement, except for services as a consultant or witness under paragraph A2.01.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 $0.00 without the prior written consent of the Owner. 2. (Deleted). C4.04 For Reimbursable Expenses A. (Modified) OWNER shall pay ENGINEER for Reimbursable Expenses at the rate set forth in Page 1 of 2 pages (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method) 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 $1000.00 for which the ENGINEER seeks reimbursement. Reimbursable Expenses shall not exceed a total of $4,950.00. B. (Modified) Reimbursable Expenses include the following categories: mileage, parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project -related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Project -related internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of (1.10). D. Not Used. E. (Added) The OWNER must approve all travel expenses before the same are incurred. If such approval is not obtained, the OWNER shall not be liable for such travel expenses. C4.05 For ENGINEER's Consultant's Charges A. (Modified) Whenever compensation to ENGINEER herein is stated to include charges of ENGINEER' s Consultants, those charges shall be the amounts billed by ENGINEER's Consultants to ENGINEER times a Factor of 1.1. The consultant charges shall not exceed the following amounts specified for each portion of the Project. The charges include the factor, and are as follows: Geotechnical $4,510.00 C4.06 Direct Labor Costs A. Direct Labor Costs means salaries and wages paid to ENGINEER's employees but does not include payroll related costs or benefits. B. (Not Used). 4.07 Rate Schedule A. (Modified) The Rate Schedule includes the cost of customary and statutory benefits including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation, and holiday pay applicable thereto; the cost of general and administrative overhead, which includes salaries and wages of principals and employees engaged in business operations not directly chargeable to projects, plus non -Project operating costs, including but not limited to, business taxes, legal, rent, utilities, office supplies, insurance, and other operating costs; plus operating margin or profit. B. External Reimbursable Expenses and ENGINEER's Consultant's Fees include ENGINEER's overhead and profit associated with ENGINEER's responsibility for the administration of such services and costs. C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for ENGINEER's services which are identified in paragraphs C4.01 and C4.03, will be based on the 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 Exceed Method of Payment) APPENDIX 1 OF EXHIBIT C RATE SCHEDULE Employee Classification Billing Rate Principal 250.00 Senior Project Manager 115.00 - 225.00 Project Manager 110.00 - 200.00 Senior Project Engineer 95.00 - 155.00 Project Engineer 70.00 - 105.00 Hydrologist/Hydraulic Engineer 95.00 - 155.00 Staff Engineer 40.00 - 85.00 Senior Transportation Engineer 115.00 - 225.00 Transporation Engineer 95.00 - 155.00 GIS Manager 75.00 - 115.00 GIS Specialist 55.00 - 85.00 GIS Technician 35.00 - 65.00 IT Manager 90.00 - 115.00 IT Technician 45.00 - 65.00 Senior Designer 80.00 - 110.00 Designer 80.00 - 100.00 Senior Computer Technician 65.00 - 90.00 Computer Technician 50.00 - 80.00 Project Representative 55.00 - 85.00 Clerical 50.00 - 75.00 Project Surveyor 115.00 - 225.00 Registered Surveyor 90.00 - 200.00 Senior Survey Technician 90.00 - 120.00 Survey Technician 55.00 - 105.00 1-Man GPS Survey Crew 110.00 2-Man GPS/Robotic Survey Crew 140.00 2-Man Survey Crew 120.00 3-Man Survey Crew 150.00 Page 1 of 1 pages (Appendix 1 to Exhibit C Rate Schedule) APPENDIX 2 OF EXHIBIT C REIMBURSEMENT OF COSTS Reproduction and Deliveries: Cost plus 10% Mileage: IRS Rate Page 1 of 1 pages (Appendix 2 to Exhibit C Reimbursement of Costs) This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between O N Rnd ENGINEER for Professional Services dated O U 1 . Initi 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 architects, engineers and/or design companies. Page 1 of 2 Pages (Exhibit G - Insurance) b. Claims -made form is acceptable. c. Coverage will be in force for three (3) years 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 A: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 & 0 can be on claims -made form. d. City of Baytown, its officials and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. 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 2 pages, referred to in and part of the Agreement between O WNfR and ENGINEER for Professional Services dated ENGINEER S e---c--- ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "OWNER") 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 ENGINEER OR ENGINEER'S EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "ENGINEER"). IN THE EVENT OF PERSONAL INJURY TO OR DEATH OF ENGINEER, SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT ALLOWED REGARDLESS OF WHETHER THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF ENGINEER. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO THE EXTENT ALLOWED BY LAW, WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY OR DEATH OF ENGINEER AND/OR (II) ENGINEER'S JOINT AND/OR SOLE NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS OTHER THAN ENGINEER THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE Page 1 of 2 Pages (Exhibit K - Indemnification) OF OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER BY REASON OF ANY OF THE ABOVE, THE ENGINEER FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER AND THE ENGINEER. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. ENGINEER assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and/or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with ENGINEER's work to be performed hereunder. This release shall apply with respect to ENGINEER's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Page 2 of 2 Pages (Exhibit K - Indemnification) ACORDM CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DD/YYYY) 12/31/2008 PRODUCER (713)463-4550 Bell Insurance Group 4544 Post Oak Place, Suite 320 Houston, TX 77027 Rebecca Hunter FAX (713)463-4590 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED COStel l o, Inc . 9990 Richmond Ave. Suite 450 (North) Houston, TX 77042 NSURERA: Continental Casualty Company 20443 INSURER B: INSURER C: INSURER 0: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAYBE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR I TR ADD'L ,NSRI' TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATF IMM/DD/YY) POLICY EXPIRATION DATF (MMIDD/VY) LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ DAMAGE TO RENTED PRFMISFS (Fa nrruranre) $ CLAIMS MADE ❑ OCCUR MED EXP (Any one person) $ PERSONAL & ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ -I POLICY n JECOT- n LOC AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) $ BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below WC SLAT H- TORY LIMITTS EER - R E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ A Pro 'essional Liability AEH113745743 07/18/2008 07/18/2009 Each Claim $ 2,000,000 Aggregate $ 2,000,000 DESCRIPTION OF OPERATIONS / LOC I NS / VEHR LES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS Project: Julie Ann Villa Drainage Improvements *10 days notice of cancellation for nonpayment of premium. CERTIFICATE HOLDER CANCELLATION City of Baytown Attn: Dick Carter, PE 2401 Market Street Baytown, TX 77520 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30* DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Byron Johnson/RH ACORD 25 (2001/08) ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) ACORD CERTIFICATE OF LIABILITY INSURANCE OP ID DATE (MMIDDIYYYY) COSTE-2 12/31/08 PRODUCER ACEC/MARSH 701 Market St., Ste. 1100 St. Louis MO 63101 Phone:800-338-1391 Fax:888-621-3173 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Costello, Inc. Att: Stephen C. Costello 9990 Richmond Ave. Suite 450 Houston TX 77042 INSURER A: Hartford Insurance Company -A+ 22357 INSURER B: Hartford Insurance Company- A+ 22357 INSURER C: Hartford Accident & Indemn-A+ INSURER D: INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR LTR AUU1 INSRC TYPE OF INSURANCE POLICY NUMBER DATE (CYMM/DD!YY)E PDATEY(M EXPIRATIOND) LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY 84SBWLU1109 PROFESSIONAL LIAB EXCL 11/01/08 11/01/09 EACH OCCURRENCE $ 1 , 000 , 000 X UAMAbt It) NtNItU PREMISES (Ea occurence)000 $ 1 ,000 CLAIMS MADE X OCCUR MED EXP (Any one person) $ 10,000 CONTRACTUAL LIAB. PERSONAL & ADV INJURY $ 1,000,000 X PER PROJECT END r T GENERAL AGGREGATE $ 2 , 000 , 000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000 7 POLICY X JECOT LOC A AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 84UEGRF4580 11/01/08 11/01/09 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 X BODILY INJURY (Per person) $ X BODILY INJURY (Per accident) $ X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ C EXCESS/UMBRELLA LIABILITY 84SBWLU1109 11/01/08 11/01/09 EACH OCCURRENCE $ 2 , 000 , 000 X IOCCUR CLAIMS MADE AGGREGATE $2,000,000 DEDUCTIBLE RETENTION $ $ $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBEREXCLUDED? If yes, describe under SPECIAL PROVISIONS below 84WBGFN7945 INCL STATE OF TEXAS 11/01/08 11/01/09 X TORY LIMITS OER E.L. EACH ACCIDENT .s 500,000 E.L. DISEASE - EA EMPLOYEE $ 500,000 E.L. DISEASE - POLICY LIMIT $ 500 , 000 OTHER DESCRIPTION Project: officials coverages Subrogation OF OPERATIONS / LOCATIONS / VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT 1 SPECIAL PROVISIONS Julie Ann Villa Drainage Improvements; City of Baytown, its and employees are included as additional insured for the above except WC. Coverage is primary and non-contributory. Waiver of is included. X-Clause CERTIFICATE HOLDER CTYBAYT CITY OF BAYTOWN ATTN: DICK CARTER, PE 2401 MARKET STREET BAYTOWN TX 77522 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL iMDL Ofl TO 1AIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, AUTHORIZED R R ENT TIVE ACORD 25 (2001/08) © ACORD CORPORATION 1988 ACORD. CERTIFICATE OF LIABILITY INSURANCE 1/1/2010 DATE(MM/DD 1/7/2009 PRODUCER Lockton Companies, LLC-1 Kansas City 444 W. 47th Street, Suite 900 Kansas City MO 64112-1906 (816) 960-9000 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERT FICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED TERRACON CONSULTANTS, INC. 1014409 551 LINK ROAD, STE F LEAGUE CITY TX 77573 1 INSURER A: LEXINGTON INSURANCE CO. INSURER B: INSURER C: INSURER 0: INSURER E: TERC001 PC NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING ..-__.._,_n•••••••••--,•..�..,".�..,.,,.�.,., rw..w..cn r.nv inc �cn nrtiw�e nuwcn. THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD'L NSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY) POLICY EXPIRATION DATE (MM/DD/YY) LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY NOT APPLICABLE EACH OCCURRENCE $ XXXXXXX DAMAGE TO RENTED PREMISES (Ea occurence) $ XXXXXXX CLAIMS MADE Q OCCUR MED EXP (Any one person) $ XXXXXXX GEN'L PERSONAL & ADV INJURY $ XXXXXXX GENERAL AGGREGATE $ XXXXXXX AGGREGATE LIMIT APPLIES PER: POLICY pi( E T- n LOC PRODUCTS - COMP/OP AGG $ XXXXXXX AUTOMOBILE _ — — — — LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS NOT APPLICABLE (Ea accident) SINGLE LIMIT $ XXXXXXX BODILY INJURY (Per person) $ XXXXXXX BODILY INJURY (Per accdent) $ XXXXXXX PROPERTY DAMAGE (Per accident) $ XXXXXXX GARAGE LIABILITY ANY AUTO NOT APPLICABLE AUTO ONLY - EA ACCIDENT $ XXXXXXX OTHER THAN EA ACC $ XXXXXXX AUTO ONLY: AGG $ XXXXXXX EXCESS/UMBRELLA RDEDUCTIBLE LIABILITY OCCUR CLAIMS MADE NOT APPLICABLE EACH OCCURRENCE $ XXXXXXX AGGREGATE $ XXXXXXX UMBRELLA FORM RETENTION $ $ XXXXXXX $ XXXXXXX $ XXXXXXX WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below NOT APPLICABLE I WC STATU- TORY LIMITS I IOTH- ER E.L. EACH ACCIDENT $ XXXXXXX E.L. DISEASE - EA EMPLOYEE $ XXXXXXX E.L. DISEASE - POLICY LIMIT $ XXXXXXX A OTHER PROFESSIONAL LIABILITY 015054489 1/1/2009 1/1/2010 $500,000 EA CLAIM & IN THE ANNUAL AGGREGATE. DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS RE PROJECT# P91-G0171-08 PROJECT JULIE ANN DRAINAGE IMPROVEMENTS. CERTIFICATE HOLDER CANCELLATION 4011676 COSTELLO, INC. 9990 RICHMOND AVENUE SUITE 450, NORTH BUILDING HOUSTON TX 77042 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHOPRESENTATIVE ACORD 25 (2001/08) For questions regarding this certificate, contact the number listed In the 'Produce? section above and specify the clle c001'. © ACORD CORPORATION 1988 ACORDn, CERTIFICATE OF LIABILITY INSURANCE 1/1/2010 DATE(M/2009 YY) 2/10PRODUCER Lockton Companies, LLC-1 Kansas City 444 W. 47th street Suite 900 Kansas City MO 6, 906 (816) 960-9000 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED TERRACON CONSULTANTS, INC. 1312891 551 LINK ROAD, STE F LEAGUE CITY TX 77573 I INSURER A: AMERICAN INTL. SPCLTY. LINES INS CO INSURER B: AN AIG COMPANY A+XV (CHICAGO) INSURER C: Travelers Property Casualty Company of America 25674 INSURER D: The Travelers Indemnity Company 25658 INSURER E: Lexinjton Insurance Company 19437 OVERAGES TERCO01 PC NOT coNs rrnUTE A CONTRACT BETWEEN THE ISSUPIO THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR ADD•L NSRO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MM/DD/YY) POLICY EXPIRATION DATE (MMIDD/YY) LIMITS A GENERAL X LIABILITY COMMERCIAL GENERAL LIABILITY PROP3779274 1/1/20091/12010 EfA��,.C��H OCCURRENCE $ 1,000,000 DAM,IAGE TO RENTED PREMISES (Ea occurence) $ 100,000 CLAIMS MADE X OCCUR I MED EXP (Any one person) S 5,000 GEN•L CONTR'L LIABILITY PERSONAL & ADV INJURY S 1,000,000 GENERAL AGGREGATE S 2,000,000 AGGREGATE LIMIT APPLIES PER: POLICY n JP t1 : nLOC PRODUCTS - COMP/OP AGG $ 1,000,000 C AUTOMOBILE X X X — LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS TJ-CAP-131J3858-T1L-09 1/1/2009 1/12010 COMBINEDSINGLEGLEuMlr Ea accident) s 1,000,000 BODILY INJURY (Per person)S XXXXXXX BODILY INJURY (Per accident) S XXXXXXX PROPERTY DAMAGE (Per accident) $ XXXXXXX GARAGE LUABIUTY ANY AUTO NOT APPLICABLE AUTO ONLY - EA ACCIDENT S XXXXXXX OTHER THAN EA ACC S XXXXXXX AUTO ONLY: AGG $ XXXXXXX A A EXCESS/UMBRELLA R LIABILITY PROU1920977 (EXCLUDES PROF. LIAB.) 1/1/2009 1/1/2010 EACH OCCURRENCE $ 5,000,000 OCCUR CLAIMS MADE AGGREGATE $ 5,000,000 X UMBRELLADEDUCTIBLEFORM E i XXXXXXX $ XXXXXXXRETENTION S XXXXXXX C D WORKERS COMPENSATION AND EMPLOYERS•UABILITY ANYPROPRIETOR/PARTNERIEXECUTIVE OFFICER/MEMBER EXCLUDED? NO If yesdescribe under SPECIAL PROVISIONS below T�-UB-131J3846-09 TC2K-UB-131J3742-09 1/12009 1/1/2009 1/1/2010 IWC STATU- OTH- X TORYLIMITs ER 1/1/2010 E.L. EACH ACCIDENT S 1,000,000 E.L. DISEASE - EA EMPLOYEE S 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 E OTHER PROFESSIONAL LIABILITY 015054489 1/12009 1/1/2010 $1,000,000 EACH CLAIM & $1,000,000 ANNUAL AGGREGATE DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES / EXCLUSIONS ADDED BY ENDORSEMENT / SPECIAL PROVISIONS RE: P91-60171-08 JULIE ANN DRAINAGE IMPROVEMENTS. CITY OF BAYTOWN, THE OWNER, ITS EMPLOYEES, AND ITS OFFICIALS ARE ADDITIONAL ISNUREDS AS RESPECTS TO GENERAL AND AUTO LIABILITY, THESE COVERAGES ARE PRIMARY AND NON-CONTRIBUTORY, AS REQUIRED BY WRITTEN CONTRACT. WAIVER OF SUBROGATION APPLIES TO WORKERS COMPENSATION WHERE ALLOWED BY STATE LAW AND AS REQUIRED BY WRITTEN CONTRACT. L 10440308 COSTELLO, INC. 9990 RICHMOND AVENUE SUITE 450, NORTH BUILDING HOUSTON TX 77042 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHO PRESENTATIVE ACORD 25 (2001/08) Far q ..dons merino El. �.ea the number feted in the *Producer' section above and specify il• Ci o., . ACORD CORPORATION 1988 U\1111V L. V11111\/411, 1 vt L. Robin. Harris From: Melissa.Sullinger Sent: Monday, February 16, 2009 1:20 PM To: Robin.Harris Cc: Dick.Carter Subject: RE: Sub Contractor Certificate for Julie Ann Villa with Terracon for Material Testing Attachments: Melissa Sullinger.vcf It is fine. Thank You, Melissa Sullinger Risk Manager City of Baytown 281-420-5362 melissa.sullinger@baytown.org oNR eMPLoyees ARS owl &MSJNess_ From: Robin.Harris Sent: Monday, February 16, 2009 1:07 PM To: Melissa.Sullinger Cc: Dick.Carter Subject: FW: Sub Contractor Certificate for Julie Ann Villa with Terracon for Material Testing Just checking status on your review of the attached revised Insurance Certificate From: Robin.Harris Sent: Thursday, February 12, 2009 8:33 AM To: Melissa.Sullinger Cc: Dick.Carter Subject: FW: Sub Contractor Certificate for Julie Ann Villa with Terracon for Material Testing Melissa, Please review the attached Insurance Certificate. You may reference the contract CD Q:\Engineering Contract for PO Processing4Julia Ann Villa. Let me know if you have any questions. Thanks, Robin From: Smith, Noosha P. [mailto:npsmith@terracon.com] Sent: Thursday, February 12, 2009 8:26 AM 2/16/2009 L,'1Gla!Ullll. L.GlllllVall. To: Robin.Harris Cc: Sam Kruse Subject: FW: Certificate from Lockton, please do not reply Robin, I believe this insurance certificate will do it. Thank you noosha Noosha P. Smith, P.E. Senior Principal League City Office Manager Terracon Consultants, Inc. 551 Link Road, Suite F I League City, Texas 77573 P 281-557-2900 I F 281-557-2990 npsmith@terracon.com I www.terracon.com From: dmyers@lockton.com [mailto:dmyers@lockton.com] Sent: Wednesday, February 11, 2009 4:51 PM To: Smith, Noosha P. Subject: Certificate from Lockton, please do not reply For coverage or issuance questions regarding this certificate, please contact the Account Manager for this insured. The attachment is an Adobe Acrobat PDF file. To open the PDF file, you need Adobe Acrobat Reader, which can be easily downloaded by going to http://www.adobe.com/prodindex/acrobat/readstep.html. Terracon provides geotechnical, environmental, construction materials, and facilities consulting engineering services delivered with reliability, responsiveness, convenience, and innovation. This electronic communication and its attachments are forwarded to you for convenience. If this electronic transmittal contains Design Information or Recommendations and not just general correspondence, Terracon Consultants, Inc., and/or its affiliates ('Terracon) will submit a follow-up hard copy via mail or delivery for your records, and this hard copy will serve as a final record In the event of conflict between electronic and hard copy documents, the hard copy will govern. This e-mail and any attachments transmitted with it are the property of Terracon and may contain information that is confidential or otherwise protected from disclosure. The information it contains is intended solely for the use of the one to whom it is addressed, and any other recipient should destroy all copies. 2/16/2009