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Ordinance No. 11,130ORDINANCE NO. 11,130 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 THE PRELIMINARY ENGINEERING REVIEW OF THE 2007 STREET BOND PROGRAM, YEAR 2 STREETS: AUTHORIZING PAYMENT BY THE CITY OF BAYTONk'N IN AN AMOUNT NOT TO EXCEED TWO HUNDRED SEVENTEEN THOUSAND FOUR HUNDRED NINETY AND NO /100 DOLLARS ($217.490.00): 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 the preliminary engineering review of the 2007 Street Bond Program. Year 2 Streets. 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 TWO HUNDRED SEVENTEEN THOUSAND FOUR HUNDRED NINETY AND NO /100 DOLLARS ($217,490.00) 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 alter its passage by the City Council of the City of Bavtow-n. �7 INTRODUCED. READ and PASSED by the affirmative vote f t� City Council of the City of Bay-town this the 1 I 'h day of June, 2009. �pYT01�r� { F vi :cn i KA T ARNEL ity Clerk r• APPROVED AS TO FORM: NA "Cl 0 RAMIREZ. SR., City orney HEN H. 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I!q!gx3 TABLE OF CONTENTS Pia ,e- ARTICLE1 - SERVICES OF ENGINEER ......................................................................................... ............................... 3 1.01 Scope .................................................................................................................................. ............................... 3 ARTICLE2 - OWNER'S RESPONSIBILITIES ................................................................................. ............................... 3 2.01 General ................................................................................................................................ ..............................3 ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3 3.01 General ................................................................................................................................ ..............................3 3.02 Suspension .......................................................................................................................... ............................... 3 ARTICLE4 - PAYMENTS TO ENGINEER ....................................................................................... ............................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ................ ............................... 3 4.02 Other Provisions Concerning Payments ............................................................................ ............................... 3 ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4 5.01 Opinions of Probable Construction Cost .......................................................................... ............................... 4 5.02 Designing to Construction Cost Limit............, ................................................................. ............................... 4 5.03 Opinions of Total Project Costs ......................................................................................... ..............................4 ARTICLE6 - 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 ............................................................................................................... ............................... 6.07 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 Sevembility ...................................................................................................................... ............................... 8 6.15 Waiver ................................................................................................................................ ............................... 8 6.16 Headings ............................................................................................................................. ............................... 8 ARTICLE7 DEFINITIONS .............................................................................................................. ............................... 8 7.01 Defined Terms ................................................................................................................... ............................... 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... I I 8.01 Exhibits Incl uded .............................................................................................................. ............................... 11 8.02 Total Agreement ............................................................................................................... ............................... I 1 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. (Deleted). ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) ENGINEER's services and compensation under this Agreement have been agreed to for the preparation of a preliminary master plan report for the Project. ENGINEER's obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Deleted). C. (Modified) For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (Deleted) B. (Modified) If ENGINEER's services are delayed or suspended in whole or in part by OWNER, ENGINEER may be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by ENGINEER in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised, unless such delay or suspension is caused in whole or in part by the ENGINEER, its officers, agents, or employees. If Engineer causes or contributes to the delay or suspension, ENGINEER shall have no right to seek additional compensation. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. (Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.0I.A and 4.013, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with ENGINEER's standard invoicing practices and will be submitted to OWNER periodically via mail or email by ENGINEER, unless otherwise agreed. ENGINEER shall supply detailed back -up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. (Modified) Payment ojlnvoices. invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to snake any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice and the required backup documentation therefor, the amounts due ENGINEER will accrue interest at the rate set forth in Section 2251.025 of the Texas Government Code (or the maximum rate of interest permitted by law, if less) after the 30th day. ENGINEER may after giving seven days' written notice to OWNER suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that ENGINEER will not charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and/or withheld in accordance with paragraph 4.02 and that ENGINEER will not suspend services under the agreement on account of a disputed invoice or on account of monies withheld. All Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 11 payments will be credited first to principal and then to interest. C. Disputed Invoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. I. In the event of any termination under section 6.06, ENGNEER 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 tem- dnation; provided all instruments of service have been tendered to the OWNER. 2. (Deleted) E. (Modified) Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced io 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, ar over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by ENGINEER. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit A. (Deleted) 5.03 Oplulons of Total Project Costs A. (Deleted) ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. (Modified) The standard of care for all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by members of ENGINEER's profession practicing under similar circumstances at the same time and in the same locality. B. (Modified) ENGINEER shall be responsible for the technical accuracy of its services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER- furnished information upon which ENGINEER is authorized to rely as provided in Section 6.01.E. C. ENGINEER shall perform or famish professional engineering and related services in all phases of the Project to which this Agreement applies. ENGINEER shall serve as OWNER's prime professional for the Project. ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER- D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER - mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of performance, or compensation. E. (Modified) OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 1 i of all requirements, programs, instructions, reports, data, and other information famished by OWNER to ENGINEER pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. ENGINEER may use such requirements, reports, data, and information in performing or furnishing services under Us Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. (Deleted). H. (Modified) ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence ENGINEER cannot ascertain; provided, that ENGINEER has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. (Deleted). J. (Deleted) K. (Deleted). L. (Deleted). 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or Famished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective PAY• 6.03 Design without Construction Phase Services (Deleted). 6.04 Use of Documents A. (Modified) Upon execution of this Agreement, the ENGINEER grants to the OWNER an ownership interest in the Instruments of Service. The ENGINEER shall obtain similar interests from the OWNER and the ENGINEER's consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the ENGINEER shall be required to tender to OWNER all Instruments of Service; provided OWNER has paid all monies, excluding any disputed amount, due and owing to ENGINEER in accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes which the OWNER sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a condition to the OWNER's use of the Instruments of Service, the OWNER hereby expressly agrees to remove the ENGINEER's name and all references to the ENGINEER, and its consultants from the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER This release of claims for the matters covered in this Paragraph 6.04A 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 - fumished data that may be relied upon by ENGINEER are limited to the printed copies that are delivered to ENGINEER pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are famished by OWNER to ENGINEER are only for convenience of ENGINEER. Any conclusion or information obtained or derived from such electronic Files will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media format of text, data, graphics, or of other types that are famished 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 parry shall be deemed to have accepted the data thus transferred. The parry delivering the electronic files will correct any errors detected within the 60 -day acceptance period. ENGINEER shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER E. When transferring documents in electronic media format, ENGINEER makes no representations as to long -term compatibility, usability, or readability of documents resulting from the use of software application packages, operating Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 1 1 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 govem. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) The obligations hereunder may be terminated: 1. For cause, a. (Modified) By either party upon 30 days' written notice in the event of failure by the other parry to perform in accordance with the term 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 parry 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 %vithin such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by ENGINEER_ B. Not used. 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.B the assigns of OWNER and ENGINEER) are hereby bound to the other patty to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. B, Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of l 1 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. 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. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 7 of I 1 6.16 Headings 13. Deleted A. The headings used in this Agreement are for general reference only and do not have special significance. 14. Deleted ARTICLE 7 - DEFINITIONS 15. Deleted 16. Deleted 7.01 Defined Terms 17. Deleted A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof, 1. Deleted 2, Additional Services - -The services to be performed for or fumished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. 3. Agreement --This "Standard Form of Agreement between OWNER and ENGMEER for Professional Services," including those Exhibits listed in Article 8 hereof. 4. Application for Payment --The form acceptable to ENGINEER which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos —Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services --The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 1, of this Agreement. 7. Deleted 8. Deleted 9. Deleted 10. Deleted 11. Deleted 12. Deleted 18. Deleted 19. Documents - -Data, Reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drenvings- -That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 21. Deleted 22. Effective Date of the Agreement —The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two patties to sign and deliver. 23. ENGINEER's Consultants — Individuals or entities having a contract with ENGINEER to furnish services with respect to this Project as ENGINEER's independent professional associates, consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants, 24. Deleted 25. Deleted 26. Deleted 27. Hazardous Environmental Condition —The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste - -The term Hazardous Waste shall have the meaning provided in Section 1004 of the Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of l 1 Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Laws and Regulations; Laws or Regulations— Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's -- Polychlorinated biphenyls. 31. Petroleum— Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 32. Radioactive Materials—Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Deleted 34. Reimbursable Expenses --The expenses incurred directly by ENGINEER in connection with the perfonning or fumishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 35. Deleted 36. Samples — Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Deleted 38. Site —Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Deleted 40. Deleted 41. Deleted 42. Deleted 43. 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 perfomiing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Deleted 45. Wrilren Amendment —A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non - engineering or non - technical rather than strictly construction - related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "ENGINEER's Services," consisting of two (2) 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. 1. Exhibit I, "Allocation of Risks," is not used. J. Exhibit J, "Special Provisions" is not used. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of I 1 K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to I1 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of I 1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: CITY OF BAYTOWN GARRISON C. BRUMBACK Title: City Manager Date Signed: 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 canerCo baytown.org ENGINEER: COSTELLO, INC. l Printed Namee%'`�y k6V if C'QS 7—,f L Title Date Signed 71-2 '9 0/ 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 I I of I I This is EXHIBIT A, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professlonal Services dated Initial: OWNER ENGINEER ENGINEER's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART I -- BASIC SERVICES (Modified) Al Al 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 jurisdicdon 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 ENGfNEER'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. G. (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. Upon receiving written Notice to Proceed, attend kick off meeting with OWNER's staff to discuss project goals, budget, schedule, and design criteria; b. Coordinate and attend Monthly Progress Meetings; c. Collect information as available for each street identifying existing paving section, public utilities, private utilities, and project constraints; d. Collect City and County design standards, details, lidar data, and regional drainage plans in the areas of concern; e. Begin coordination with private utility companies, pipeline companies, railroad companies, and agencies of jurisdiction (Chambers County, HCFCD, ACOE, TDLR) for the project; f. Provide a geotechnical report to be prepared by Terracon through a subconsultant contract; g. Provide a preliminary tree protection analysis to be developed by Kuehl & Assoc. Urban Foresters through a subconsultant contract; Page 1 of 2 pages (Exhibit A — Engineer's Services) h. Provide a design survey for each street including topographical features for the approximate right -of -way and 10 feet outside the right -of -way on both sides as well as cross sectional information every 50 feet with additional sections in critical areas; i. Perform topographic survey of cross streets for minimum 200 foot from curb returns on curb & gutter side streets, 100 feet for open ditch drainage streets; j. Get driveway cross slope information for 10 foot outside of right -of -way; k. Review each street with OWNER's staff to discuss any desired water, sanitary sewer, and drainage utility upgrades; 1. Review immediate area drainage areas for each street; inquire about any desires to improve regional drainage; m. Perform preliminary drainage calculations to verify required storm sewer sizes using 5 -year stomr event criteria with check of 100 -year event; n. Identify any project constraints such as required private utility relocations, ROW acquisition, and permits and take proactive action to mitigate any affects to project schedule; o. Attend and coordinate a public meeting for the improvements. 8. (Modified) Prepare a preliminary report of 30% plan and profile drawings for each street including proposed paving, sidewalks, ramps, driveway improvements, and public utility adjusimentslupgrades (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. A preliminary tree protection plan shall also be included in the Report. 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 fumished by OWNER, allowances for other items and services included within the definition of Total Project Costs. 9. Furnish six (6) review copies of the Report to OWNER within ninety (90) 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 six (6) 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 wider 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. A).02 Final Design Phase (Deleted in its entirety) A1.03 Bidding or Negotiating Phase (Deleted in its entirety) A 1.04 Construction Phase (Deleted in its entirety) A 1.05 Post - Construction Phase (Deleted in its entirety) PART 2 — ADDITIONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance Not Included A2.02 Required Additional Services Not Included Page 2 of 2 pages (Exhibit A — Engineer's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and pan of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. 82.01 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 fimtish 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 uoder 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 R - OWNER's Responsibilities) 1. (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 esdmaling, 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 endry 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 reladon thereof to the duties, responsibilities, and authority of ENGINEER. M. Attend the pre -bid conference, bid opening, pre- construction conferences, construction progress and otherjob 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 8 - OWNER's Responsibilities) This is EXHIBIT C, consisting of 1 pages, referred to in and part of the Agreement betiveen OWNER and ENGINEER for Professional Services dated Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 -- PAYMENTS TO THE ENGINEER C4.01 For Basic Services Having A Determined Scope —Cost not to Exceed Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A as follows: 1. (Modified) A cost not to exceed amount of $189,525.00, based upon the rate schedule, which is attached as Appendix i of Exhibit C and incorporated herein for all intents and purposes. The cost not to exceed does not include those Engineer's Consultant's charges as provided below in this Article 4, Subparagraph C4.05. Additionally, the cost not to exceed will be distributed at the completion of each of the phase in an amount not exceeding the following for each task: 1. Preliminary Design Phase ........$ 189,525.00 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 the cost not to exceed to account for labor, overhead, and profit. 4. Not Used. Initial: OWNER ENGINEER 5. The portion of the amount billed for ENGINEER's services will be based upon total services actually completed during the billing period. C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor Method ofPaywrenl 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 I 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 rote set forth in Appendix 2 of this Exhibit C. Before the OWNER shall be liable for any reimbursable expenses, the ENGINEER must obtain prior written approval of the OWNER of any expense that exceeds 51000.00 for Page I of 2 pages (Exhibit C - Basic Services With Determined Scope -- Coat not to exceed Method) which the ENGINEER seeks reimbursement. Reimbursable Expenses shall not exceed a total of 56,500.00. 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 (I.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_l. 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 .................. .....................$14,705.00 Preliminary Tree Protection .................$3,460.00 TDLR .......................... ......................$3,300.00 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 I OF EXHIBIT C RATE SCHEDULE' Employee Classification Bitling 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 H drolo ist/H draulic Engineer 95.00 - 155.00 Staff Engineer 40.00 - 85.00 Senior Tmnsportadon Engineer 115.00 - 225.00 Transportation Engineer 95.00 - 155.00 GIS Mana er 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 Desi ner 80.00 - 110.00 Designer 80.00 - 100.00 Senior Comuuter 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 1 10.00 2 -Man GPS/Robotic Survey Crew 140.00 2 -Man Survey Crew 120.00 3 -Man Survey Crew 150.00 'This is the only rate schedule that I have from them. I assume that it includes the multiplier? Page 1 of I 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 pan of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 1wurance 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 maybe 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: 51,000,000 Personal & Advertising Injury: S 1,000,000 Per Occurrence: 5500,000 a. Coverage shall be at least as broad as ISO CO 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: 51,000,000 a. Coverage for "Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability 5500,000 Waiver of Subrogation required Errors & Omissions (E &O) Limit: 5500,000 a. For all architects, engineers and/or design companies. b. Claims -made form is acceptable. Page 1 of 2 Pages (Exhibit G - Insurance) c. Coverage will be in force for 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:YII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. c. Liability policies will be on occurrence form. E & O can be on claims -made form. d. 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 famished 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 famished to City of Baytown's representative. Page 2 of 2 pages (Exhibit G - Insurance) This is EXHIBIT K. consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND 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 (1) 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 I 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 oft Pages (Exhibit K - Indemnification)