Ordinance No. 11,132ORDINANCE NO. 11,132
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 KLOTZ ASSOCIATES, INC.. FOR AN UPDATE TO THE CITY OF
BAYTOWN MASTER DRAINAGE PLAN: AUTHORIZING PAYMENT BY THE
CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED TWO HUNDRED
TWENTY -FOUR THOUSAND NINE HUNDRED FORTY -FIVE AND NO /100
DOLLARS ($224.945.00): 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
Klotz Associates. Inc.. for an update to the City of Baytown Master Drainage Plan. 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 Klotz
Associates. Inc., in an amount not to exceed TWO HUNDRED TWENTY -FOUR THOUSAND NINE
HUNDRED FORTY -FIVE AND NO /100 DOLLARS ($224,945.00) 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. /J
INTRODUCED. READ and PASSED by the affirmative vot f the City Council of the City of
Baytown this the I 10' day of June. 2009. 14
ATTEST:
DARNELL; City Clerk
APPROVED AS TO FORM:
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4ACIen RAMIREZ. SR., l y Attorney
Vcobsry l'.legahKarenTiles 'Ciq,Council1Ordinancul2owjune InKlotzVasterDrainagePlan.doc
. DONCARLOS. Mayor
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STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of � (,��/ 4S pL 00/ ("Effective Date").
Between
The City of Baytown ("OWNER")
and
Klotz Associates, Inc. ("ENGINEER")
OWNER intends to obtain engineering services for updating the OWNER'S Master Drainage Plan (the"Project").
ENGINEER is to conduct an update to the citywide master drainage plan and to provide recommendations for the
improvements necessary to meet the OWNER'S growth and future needs. The plan will focus on sub-regional
detention basins and other applicable improvements. The plan is to provide options to future developments to buy
into sub-regional detention basins and to avoid the proliferation of small on-site detention basins that take up
developable land and are not always built or maintained to provide benefits to the OWNER and its citizens. The
detention basins will be configured to serve as dual use facilities where practical. The final report will complement
the current edition of the Baytown Comprehensive Drainage Plan dated February 2000.
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 1of12
TABLE OF CONTENTS Page
ARTICLE1 - 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
ARTICLE4 - PAYMENTS TO ENGINEER ....................................................................................... ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER ............. ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................ ............................... 3
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
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
6.07 Controlling Law ................................................................................................................. ............................... 7
6.08 Successors, Assigns, and Beneficiaries ................................................................ ...............................
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................ ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.12 Notices ............................................................................................................................... ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severabil ity ......................................................................................................................... ............................... 8
6.15 Waiver ................................................................................................................................ ..............................8
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - 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 Engineer for Professional Services
Page 2 of 12
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set forth
in Exhibit A.
C. (Deleted.)
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) ENGINEER's services and
compensation under this Agreement have been agreed to for
the design of the Project. ENGrNEER's obligation to render
services hereunder will be for whatever period necessary for
the final completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Modified) If OWNER fails within a reasonable
period of time to give written authorization to proceed with
any phase of services after completion of the immediately
preceding phase, or if OWNER delays ENGINEER's
services, ENGINEER may, after giving seven days' written
notice to OWNER, suspend services under this Agreement. if
during such seven -day period, OWNER gives written
authorization to proceed or ENGINEER'S services are no
longer delayed by OWNER, ENGINEER may not suspend
services under this Agreement.
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, ENGIINTEER shall
be entitled to equitable adjustment of rates and amounts of
compensation provided for elsewhere in this Agreement to
reflect, reasonable costs incurred by ENGINEER in
connection with, among other things, such delay or
suspension and reactivation and the fact that the time for
performance under this Agreement has been revised.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Boric 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
4.01.13, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGM -FR's
Consultants as set forth in Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. ENGINEER shall supply detailed
back -up information along with each invoice in order for the
OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
Exhibit C.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and
backup documentation therefor, the amounts due EN- GLNTEER
will be increased at the rate prescribed 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
other related charges. However, it is expmssly understood
and agreed that ENGINEER will not charge any interest or
penalty as set forth herein on any portion of an invoice that is
disputed and withheld in accordance with paragraph 3.02.0
and that ENGINEER will not suspend services under the
agreement on account of a disputed invoice or on account of
monies withheld. All payments will be credited first to
principal and then to interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination.
1. In the event of any termination under section
6.06, ENGINEER will be entitled to invoice OWNER
and will be paid in accordance with Exhibit C for all
services performed or furnished and all Reimbursable
Expenses incurred through the effective date of
termination.
2. (Deleted)
E. (Modified) Records of ENGINM'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 OW'ER.
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 famished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER
cannot and does not guarantee that proposals, bids, or actual
Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER- if OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
(Deleted).
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the
accuracy of opinions of Total Project Costs.
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINTEER'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. ENGMER. 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 fumish 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
ENGDIEER's Consultant unacceptable to ENGINEER
D. ENGINEER and OWNER shall comply with
applicable Laws or Regulations and OWNTER- 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data, and
other information furnished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use
such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or certification
that 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 ENGINE.ER's having to certify, guarantee or
warrant the existence of conditions whose existence
ENGINEER cannot ascertain; provided, that ENGINEER has
exercised due diligence and was not otherwise required to
certify, guarantee or warrant the existence of such conditions.
1. During the Construction Phase, ENGINEER shall
not supervise, direct, or have control over Contractor's work,
nor shall ENGINEER have authority over or responsibility
for the means, methods, techniques, sequences, or procedures
of construction selected by Contractor, for safety precautions
and programs incident to the Contractor's work in progress,
nor for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing the Work.
J. (Modified) ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEER knew or should have known existed in the
exercise of ENGINEER's services under this Agreement.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor's), subcontractor or
supplier, or of any of the Contractor's agents or employees or
any other persons (except ENGINEER's own employees and
its consultants for which it is legally liable) at the Site or
otherwise furnishing or performing any of the Contractor's
work; or for any decision made on interpretations or
clarifications of the Contract Documents given by OWNER
without consultation and advice of ENGINEER
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
party.
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction Phase
services with either OWNER's representatives or a third
party, ENGINEER's Basic Services under this Agreement
will be considered to be completed upon completion of the
Final Design Phase or Bidding or Negotiating Phase as
outlined in Exhibit A.
B. It is understood and agreed that if ENGINEER's
Basic Services under this Agreement do not include Project
observation, or review of the Contractor's performance, or
any other Construction Phase services, and that such services
will be provided by OWNER, then OWNER assumes all
responsibility for interpretation of the Contract Documents
and for construction observation or review and waives any
claims against the ENGINEER that may be in any way
connected thereto.
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
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 OVONER sees fn, 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 - 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
OWNT.R. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER. Files in
electronic media format of text, data, graphics, or of other
types that are furnished by ENGINEER to OWNER are only
for convenience of OWNER. Any conclusion or information
obtained or derived from such electronic files will be at the
user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving parry
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 nwsferring 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 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 ENGMER.
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 dial
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 ENGINTER's Consultants to
obtain such additional insurance coverage, different limits, or
revised deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
these requirements.
6.06 'Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified)-By either party upon 30 days'
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating party; or
b. By ENGINEER upon seven days' written
notice if ENGINEER is being requested by
OWNER to famish or perform services contrary to
ENGINEER's responsibility as a licensed
professional.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
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 ENGr\TF.ER.
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 OV4'\ER
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 Iazardous 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
ENGLNEER'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 defrged 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 �1GINEER's activities under this
Agreement.
F. If FNGLNTEER'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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
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 parry
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof.
1. Addenda -- Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
change the Bidding Documents.
2. Additional Services- -The services to be
performed for or furnished to OWNER by ENGINEER
in accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement —This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," including those Exhibits listed in Article 8
hereof.
4. Application for Payment- -The form acceptable
to ENGINEER which is to be used by Contractor in
requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents.
5. Asbestos —Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
fibers into the air above current action levels established
by the United States Occupational Safety and Health
Administration.
6. Basic Services- -The services to be performed
for or furnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. Bidding Documents —The advertisement or
invitation to Bid, instructions to bidders, the Bid form
and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
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.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
11. Construction Contract- -The entire and
integrated written agreement between the OWNER and
Contactor 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 E of this Agreement. Construction
Cost is one of the items comprising Total Project Casts.
13. (Modified) Contract Documents-- Documents
that establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor and all
documents referenced therein, Addenda (which pertain to
the Contract Documents), Contractor's Bid (including
documentation accompanying the Bid and any post -Bid
documentation submitted prior to the notice of award)
when attached as an exhibit to the Construction
Agreement, the notice to proceed, the bonds, appropriate
certifications, insurance documents the General
Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders,
Work Change Directives, Field Orders, and
ENGINEER's written interpretations and clarifications
issued on or after the Effective Date of the Construction
Agreement. Approved Shop Drawings and the reports
and drawings of subsurface and physical conditions are
not Contract Documents.
14. Contract Price - -The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated in
the Construction Agreement.
15. Contract 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
ENGNEER'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 ENGIIVEER'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
patties to sign and deliver.
22. Effective Date of the Agreement- -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGINEER's Consultants — Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGIN -ER's
independent professional. associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGINEER's Consultants.
23. 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.
24. 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
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
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.
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 ENGINNEER upon completion
of the Work, has shown changes due to Addenda or
Change Orders and other information which ENGINEER
consider significant based on record documents
furnished by Contractor to ENGINEER and which were
annotated by Contractor to show changes made during
construction.
34. Reimbursable Erpemses --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
authorised representative of ENGINT -ER' if any,
du
assigned to assist ENGINEER at the Site ring the
Construction Phase. The Resident Project Representative
will be ENGI\TEER'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,
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
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 fumishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44. Work Change Directive - -A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing
or unforeseen subsurface or physical conditions under which
the Work is to be performed or to emergencies. A Work
Change Directive will not change the Contract Price or the
Contract Times but is evidence that the parties expect that the
change directed or documented by a Work Change Directive
will be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if any, on
the Contract Price or Contract Times.
45, Written Amendment - -A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - engineering or non - technical
rather than strictly construction- related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGTNEER's Services," consisting of
five (5) pages.
B. Exhibit B. "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to Engineer for Services and
Reimbursable Expenses," consisting of two (2) pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E, ";Notice of Acceptability of Work," is not
used.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, `Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
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 WITNESS OF,the parties hereto have
executed this me the E e Date of which is
indicated on p 1.
OWNER C F ENGINEER:,
GARRISO .BR
Printed Name Billy Cooke, P.E.
Title: City ager Title Executive Vice President
Date Signed: �E'' ^ 406) Date Signed Z-/O.e) 7
Address for giving notices: Address for giving notices:
P.O.BOX 424 1160 DAIRY ASHFORD,SUITE 500
BAYTOWN,TEXAS 77422-0424 HOUSTON,TEXAS 77079
Designated Representative(paragraph 6.02A): Designated Representative(paragraph 6.02A):
Richard E.Carter,P.E.
Vice President
Title:City Engineer Title: Gary Struz ick, P.E.
Phone Number: (281)420-6545 Phone Number: (281)589-7257
Facsimile Number: (281)420-6586 Facsimile Number: (28 11 5 89-7309
E-Mail Address: dick.carter@baytown.org E-Mail Address: gary.struzick@klotz.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
1 Page 12 of 12
This is EXHIBIT A, consisting of 5 pages, referred to in and
part of the Agreement between�WNER and ENGINEER
for Professional Services dated -4"-de p
WNER
ENGINEER
ENGINEER's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART 1-BASIC SERVICES(Modified)
A1.01 Master Drainage Plan
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, including but
not limited to mitigating measures identified in the environmental assessment(if any).
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Added)Perform or provide the following additional tasks or deliverables:
(1) Data Collection
a. Conduct field reconnaissance.
b. Obtain and review the latest available hydrologic and hydraulic models, reports, plans
and other helpful data from the OWNER, Chambers County or from Harris County
Flood Control District.
c. Obtain LIDAR data for the Chambers County area of Baytown.
d. Obtain 2008 HGAC aerials for the Chambers County area of Baytown from the
OWNER.
e. Work with the OWNER to understand current development trends and their future plans
for the City of Baytown.
f. Work with Harris County Food Control District on their development of Watershed
Master Plans for the Baytown area and on their current plans for the Baytown
watersheds.
g. Identify areas that may need updating or additional consideration from the models.
h. Incorporate new developments that have been built that were not included in the previous
Master Drainage Plan.
i. Incorporate areas annexed by the OWNER.
j. Identify flooding and drainage problem areas from the initial data collection.
k. Identify large tracts of land that are located in strategic locations within the watersheds to
possibly serve as sub-regional detention sites.
Page 1 of 5 pages
(Exhibit A-Engineer's Services)
(2) Update models with LIDAR or other data
a. Begin the hydraulic modeling effort using the TSARP hydraulic models.
b. Determine areas that need updating using available LIDAR or other data.
c. Determine any areas where additional hydrologic or hydraulic modeling is needed.
d. Coordinate with OWNER on data that is available that may help in the modeling.
e. Incorporate LIDAR or other data into models.
(3) Hydrologic and Hydraulic Modeling
a. Incorporate additional improvements constructed by the OWNER into the models.
b. Solicit and include additional repetitive loss data from FEMA into the plan.
c. Include other specific information from the OWNER or others.
d. Convert useful data from the previous plan into HEC -HMS models. Perform hydrologic
analysis for establishing design flows for each watershed. HEC -HMS hydrologic models
will be used to perform the sizing for watershed (major drainage channel analysis). The
rational method or site runoff curves will be used for site specific analysis, where
appropriate. The analysis is to determine the design flow rates under existing conditions
and ultimate developed conditions.
e. Run LIDAR for the OWNER to develop one foot contour lines. Obtain available
LIDAR contour lines from the OWNER
f. Identify potential ponding areas from a review of the LIDAR data and from a pending
evaluation.
g. Update the flows for the watersheds using the TSARP data and other input data from
tasks describe above.
h. Begin the hydraulic modeling efforts using the latest available IICFCD hydraulic models.
i. Update the hydraulic models using data from the tasks described above.
j. Convert useful data from the previous plan into HEC -RAS models. Perform hydraulic
analysis of storm sewer systems using a back -water spreadsheet program and open
channel drainage using the HEC -RAS computer program or a normal depth spreadsheet.
The analysis is to evaluate the conveyance capacity of the existing system and to
determine the required additional capacity.
k. Review the current OWNER design criteria for storm sewer and open channel design.
Make recommendations for updating the criteria in regards to surrounding community
and agency criteria.
I. Submit a draft portion of the report documenting the changes in flows and water surface
elevations as a result of the updated models.
(4) Public Meeting
a. Work with the OWNER to participate in one or more public meeting(s) to solicit input on
problem areas, public perspective on basin and channel geometry issues, location of
sub - regional basins and input into the overall plan.
b. Determine problem areas from a review of the models and data and from input from
OWNER, public comment and other information.
c. Participate in one or more public meetings to submit updated information on the models
to the public and to solicit input into the plan from the public. Prepare the agenda and
bring applicable printed exhibits and PowerPoint presentation to Public meetings.
(5) Future Developments
a. Determine and document the areas most likely to develop within the next ten years from
input from the OWNER.
b. Solicit development information from developers or others using information provided
by the City to contact them.
(6) Develop geometry basics for detention basins
a. Work with landscape consultant to develop a range of basic geometry alternatives along
with the relative benefit and impact of the various geometric issues presented for
detention basins and for channel improvements as needed. The geometry issues will
address issues concerning:
1. Side slopes,
2. Basin depth,
3. Wet basin vs. dry basin issues,
Page 2 of 5 pages
(Exhibit A — Engineer's Services)
4. Depth of basin,
5. Probable dual use amenities,
6. Vegetation,
7. Inflow and outflow structures or facilities,
8. Maintenance, and
9. Other issues.
b. Present the alternatives to OWNER for discussion, input and selection of basic geometry
for basins.
c. Solicit input to geometry issues at public meetings.
d. Adopt the recommended geometry for detention basin and for channel improvements for
use in this plan.
(7) Prepare sub - regional master drainage plan.
a. For the identified problems along major drainage channels, study and analyze
alternatives for drainage improvements, with an initial focus of mitigation using sub -
regional detention and then channel improvements, flow diversions and storm sewer
improvements.
b. Evaluate locations and sizing of sub - regional detention facilities to address existing
conditions. Evaluate sub - regional detention basins for service area, size and capacity of
basin. Submit information on the locations of the possible sub - regional detention basin.
Work with the OWNER to select the most feasible sites for sub - regional detention,
c. Evaluate upstream and downstream channel improvements where needed to convey
existing flows to the sub - regional detention basins.
d. Evaluate locations and sizing of sub - regional detention facilities to address future
developments as identified in the task above.
e. Evaluate channel improvements where needed to convey future development flows to
sub- regional detention basins.
f. Determine the additional drainage right -of -way requirements for the improvements
described in items above. A maintenance berm requirement around sub - regional
detention facilities where required and on both sides of channel improvements will be
evaluated for determining needed right -of -way.
g. Prepare construction cost estimates and implementation plan for the feasible alternatives.
h. Prepare options for funding the construction and maintenance of the facilities.
i. Prepare a letter report of the Sub - Regional Master Drainage Plan. This letter report is
intended to be used in conjunction with the previously prepared Master Drainage Plan.
ENGINEER will use some of the previous data, text tables and exhibits with this report.
The plan will include limited text, tables, exhibits, appendices and cost estimate. A
goal of this report will be to minimize channel construction or improvements.
j. Provide recommendations for drainage improvements.
k. Attend monthly meetings, perform project management and conduct quality control.
6. (Modified) Attend meetings with OWNER and OWNER'S designated boards and/or commissions to
receive input into OWNER'S requirements for the Project and evaluation potential solutions available
to OWNER.
S. Furnish ten (10) review copies and a pdf version of the draft report to OWNER and its Council within
355 calendar days of authorization to begin services and review it with OWNER and its Council. The
ENGINEER will be responsible for understanding and incorporating all comments into the draft report
and models.
9. Revise the report in response to OWNER's and other parties' comments, as appropriate, and furnish
twenty (20) final copies and a pdf version of the final report to the OWNER within ten (10) days after
completion of reviewing it with OWNER and its Council.
B. (Modified) ENGINEER's services will be considered complete on the date when the final copies of the
Master Plan have been delivered to and accepted by OWNER.
Page 3 of 5 pages
(Exhibit A —Engineer's Services)
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorisation in Advance
A. If authorized in writing by OWNER in advance of any additional services being performed, 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 only if prior written authorization is received from the
01VNER.
I. (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 ENGL\EER.
2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the
accuracy of drawings or other information famished by OWNER.
3. (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including, but not limited to,
changes in size, OWNER's schedule, or character of construction; and revising previously accepted
studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
4. (\Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A1.0I.A.4.
5. Services required as a result of OWNER's providing incomplete or incorrect Project information with
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
Section 6.0 LEA of the Agreement.
6. Providing renderings or models for OWNTER's use.
7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating
processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity
surveys of materials, equipment, and labor, and audits or inventories required in connection with
construction performed by OWNER.
S. Furnishing services of ENGIh'EER's Consultants for other than Basic Services.
9. Services attributable to more prime construction contracts than specified in paragraph A1.03.C.
10. Services during out -of -town travel required of ENGINEER other than for visits to the Site or OWNER's
office.
11. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value engineering, and constructibility review requested by OWNER; and performing or furnishing
Page 4 of 5 pages
(Exhibit A — Engineer's Services)
services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a
result of such review processes.
12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
13. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
14. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
15. Other services performed or furnished by ENIGENEER not otherwise provided for in this Agreement.
16. Property descriptions.
17. (Modified) Property, easement, right-of-way, and other special surveys or data, including establishing
relevant reference points.
18. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant
environmental or cultural studies as to the Project, the Site, and adjacent areas.
19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged
by fire or other cause during construction, or (4) acceleration of the progress schedule involving services
beyond normal working hours.
A2.02 RequiredAddkional Services
1. (Deleted)
2. (Deleted)
3. (Deleted)
4. (Deleted)
5. (Deleted)
6. (Deleted)
Page 5 of 5 pages
(Exhibit A — Engineer's Services)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between WNER and ENGINEER
for Professional Services dated —/
al:
OWNER
ENGINEER`'
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard
forms,conditions,and related documents for ENGINEER to include in the Bidding Documents,when applicable.
B. Furnish to ENGINEER 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. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
5. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as
required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination)and render in writing timely
decisions pertaining thereto.
H. (Deleted).
Page 1 of 2 pages
Pages
(Exhibit B-OWNER's Responsibilities)
I. (Deleted).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructibility review.
K. Furnish to ENGINTEER 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
Pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OYVNER and ENGINEER
for Professional Services dated -/.5^eg
Initial•
OWNER
ENGINEER.r��----
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and 3. The cost not to exceed includes
supplemented to include the following agreement of compensation for ENGINEER'S services and
the parties: services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05),
ARTICLE 4--PAYMENTS TO THE ENGINEER if any. Appropriate amounts have been
incorporated in the cost not to exceed to account
C4.01 For Basic Services Having A Determined for labor,overhead,and profit.
Scope —Cost not to Exceed Method of
Payment 4. Deleted.
A. OWNER shall pay ENGINEER for Basic 5. The portion of the amount billed for
Services set forth in Exhibit A as follows: ENGINEER's services will be based upon total
services actually completed during the billing
1. (Modified) A cost not to exceed period.
amount of $200.945, based upon Direct Labor
Costs based upon the rate schedule, which is
attached as Appendix 1 of Exhibit C and C4.02 For Basic Services Having An Undetermined
incorporated herein for all intents and purposes, Scope — Direct Labor Costs Times a Factor
which amount does not include those Engineer's Method of Payment
Consultant's charges as provided below in this
Article 4, Subparagraph C4.05, to be distributed A. (Not Used).
at the completion of each of the tasks in an
amount not to exceed the following: C4.03 For Additional Services
a. Data Collection $30,365.00 A. OWNER shall pay ENGINEER for
b. Update Models with LIDAR Additional Services as follows:
or other data $12,515.00
c. Hydrologic and Hydraulic 1. General. For services of ENGINEER's
Modeling $ 35,055.00 employees engaged directly on the Project
d. Public Meeting $ 16,665.00 pursuant to paragraph A2.01 or A2.02 of Exhibit
e. Future Developments $ 9,230.00 A of the Agreement, except for services as a
f. Develop geometry basics consultant or witness under paragraph
for detention basins $ 11,430.00 A2.01.A.13, an amount equal to ENGINEER's
g. Prepare Sub-Regional Master Direct Labor Costs based upon the rate schedule,
Drainage Plan $ 85,685.00 which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and
3.2. (Modified) ENGINEER may with the purposes, plus Reimbursable Expenses and
consent of OWNER alter the distribution of ENGINEER's Consultant's charges, if any.
compensation between individual phases noted Additional Services must be approved in writing
herein to be consistent with services actually by the OWNER before the OWNER shall be
rendered, but shall not exceed the total cost not liable for any such services..
to exceed amount unless approved in writing by
the OWNER. 2. (Not Used).
Page 1 of 2 pages
(Exhibit C-Basic Services With Determined Scope--Cost not to Exceed Method)
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay ENGINEER for
Reimbursable Expenses as the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the
OWNER of any expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Reimbursable Expenses shall not exceed S9,000.00
without the prior written consent of the Owner.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items
in addition to those required under Exhibit A. and, if
authorized in advance by OWNER.
C. The amounts payable to ENGINEER for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
ENGINEER, plus all invoiced external Reimbursable
Expenses allocablc to the Project, the latter
multiplied by a Factor of 1.10 .
D. Deleted.
E. (Added) The OWNER must approve all
travel expenses before the same are incurred, if such
approval is not obtained, the OWNER shall not be
liable for such travel expenses.
C4.05 For ENGINEER's Consultant's Charges
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of I.I. The consultant
charges shall not exceed the following amounts
specified for each of the following services, unless
approved in writing by the OWNER. The charges
include the factor, and are as follows:
(1) Landscape Consultant S 15,000.00
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and
wages paid to ENGIA.ZER's employees but does not
include payroll related costs or benefits.
B. (Deleted).
4.07 Factors
A. (Deleted).
B. (Deleted).
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
identified in paragraphs C4.01 and C4.03, will be
based on the Direct Labor Costs for the cumulative
hours charged to the Project during the billing period
by all of ENGINEER's employees, 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)
This is Appendix 1 to EXHIBIT C, consisting of 1 page,
referred to in and part of the Agreement between OWNER
and ENGINEER for Professional Services date
Inif
OWNER
ENGINEER
Rate Schedule
Principal $260.00
Senior Project Manager $210.00
Project Engineer $140.00
Associate Engineer $130.00
Senior Designer $125.00
Designer $115.00
Clerical $75.00
Page 1 of 1 Pages
(Appendix 1 to Exhibit C)
This is Appendix 2 to EXHIBIT C, consisting of 1 page,
referred to in and part of the Agreement between 9WNER
and ENGINEER for Professional Services dated 46-4
Initial:
0 R
ENGINEER�` �
Reimbursable Expenses Schedule
Plan Sheet Reproduction $0.20/Square Foot
Mylar $8.50/Square Foot
Copies(Including Collating,Punching,&Binding) $0.15/Sheet
Per-Diem—Subsistence $25.00/Day
Lodging(Not To Exceed$70.00/Night) $70.00/Night
Mileage IRS Rate
Facsimiles $1.00/Page
Data Cartridge Tape Transfer $100.00 Each
Deliveries,Postage,Telephone,Parking,Tolls,Photos,Etc. At cost
Page 1 of 1 Pages
(Appendix 2 to Exhibit C)
• This is EXHIBIT G, consisting of 2 pages, referred to in and
• part of the Agreement between WNER and ENGINEER
for Professional Services dated ""Cl .
Initial:
O
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: $1,000,000
a. For all engineers, and/or design companies.
b. Claims-made form is acceptable.
Page 1 of 2 Pages
(Exhibit G-Insurance)
C. Coverage will be in force for 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 B +:VII or better for all liability policies.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & O can be on claims -made form.
d. City of Baytown, its officials, agents and employees are to be added as Additional Insured to the
commercial general liability and business automobile policies.
c. 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 C - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between QWNER and ENGINEER
for Professional Services dated 4- LS c 7
Initial:
O R
f2r-
ENGINEER
PROFESSIONAL AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREINAFTER REFERRED TO
AS THE "CITY") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO
ANY PROPERTY, OR FOR ANY BREACH OF CONTRACT,
ARISING OUT OF, OR IN CONNECTION WITH THE WORK
DONE BY PROFESSIONAL UNDER THIS CONTRACT CAUSED
BY THE SOLE OR JOINT NEGLIGENCE OF PROFESSIONAL. IT
IS THE EXPRESSED INTENTION OF THE PARTIES HERETO,
BOTH PROFESSIONAL AND THE CITY, THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS
INDEMNITY BY PROFESSIONAL TO INDEMNIFY AND
PROTECT THE CITY FROM THE CONSEQUENCES OF
PROFESSIONAL'S OWN NEGLIGENCE, WHETHER THAT ,
NEGLIGENCE IS THE SOLE OR A CONCURRING CAUSE OF
THE RESULTING INJURY, DEATH OR DAMAGE. SUCH
INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY
ARISING FROM THE PERSONAL INJURY, DEATH, OR
PROPERTY DAMAGE OF PERSONS THAT IS CAUSED BY OR
RESULTS FROM THE NEGLIGENCE OF THE CITY. IN THE
EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT
AGAINST THE CITY FROM WHICH THE CITY IS
INDEMNIFIED, PROFESSIONAL FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE CITY. THE
INDEMNITY PROVIDED FOR IN THIS EXHIBIT K SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS
AGREEMENT.
Page 1 of 2 Pages
(Exhibit K-Indemnification)
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have
granted by the terms of this Contract or any other contract or agreement, any
charter, or applicable state law. nothing herein shall be construed so as to limit or
waive OWNER'S sovereign immunity. ENGINEER assumes full responsibility for
its work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and /or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with ENGINEER's work to be performed
hereunder. This release shall apply with respect to ENGINEER's work regardless
of whether said claims, demands, and causes of action are covered in whole or in
part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and /or expiration of this Agreement.
Page 2 of 2 Pages
(Exhibit K - Indemnification)