Ordinance No. 11,328 ORDINANCE NO. 11 -328
AN ORDINANCE OF THE CITY COUNCL.. OF THE CITY OF BAYTOWN. TEXAS_
AUTI-IORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO THE FIRST AMENDMENT TO THE
PROFESSIONAL SERVICES AGREEMENT WITI1 I-IDR ENGINEERING. INC.. FOR
THE NORTH MAIN WATER TOWER PROJECT: AUTI-IORIZING PAYMENT BY
TI-IF_ CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE I IUNDRED
FORTY-SIX THOUSAND SIX HUNDRED AND NO/100 DOLLARS ($146,600.00);
MAKING OTHER PROVISIONS RELATED THERETO: AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF_
BE IT ORDAINED BY TI-II_ CITY COUNCIL OF T11E CI"I'Y OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Bayto%.vn, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to the First Amendment to the
Professional Services Agreement with HDR Engineering, Inc._ for the North Main Water Tower Project.
A copy of the First Amendment 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 HDR
Engineering, Inc_. in an amount not to exceed ONE HUNDRED FORTY-SIX 'I'l-IOUSAND SIX
HUNDRED AND NO/100 DOLLARS ($146.600.00) for engineering services in accordance with the
amendment authorized in Section I 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 (251/o)_
INTRODUCED_ READ, and PASSED by the affirmative vote of e City Council of the City of
is the 25`h day of March. 2010.
� I lee►
a S L
PHEN I l_ DONCAROS. Mayor
A
ALISI-IA BRINSFIELD. Deputy City Clerk
APPROVED AS TO FORM:
"zZACIO RAMIREZ, SR._ City ttorney
R.'I�aicu\Fifes'-City C.-i1',ordin..c N2010%Mar h 25'fIDIZFirst\mendmcntA�iorthMainWaterTO«-rrProject_doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the day of ,2010("Effective Date").
Between
The City of Baytown ("OWNER")
and
HDR ENGINEERING, INC. ("ENGINEER").
OWNER intends to engage ENGINEER to perform engineering services related to design and associated services
for the North Main Water Tower Project located near the intersection of Cedar Bayou-Lynchberg Road and N.Main
Street (the "Project") for and on behalf of the OWNER. The Project will entail the elevated water tank and
appurtenances, as well as associated site work, controls, structural, piping, and mechanical/electrical components,
all of which will be designed to meet the criteria established by the City of Baytown and the Texas Commission on
Environmental Quality (TCEQ) regulations (Title 30, Part 1, Chapter 290 of Texas Administrative Code) for the
development of public water supply, storage, pumping, and transmission facilities as identified in "Rules and
Regulations for Public Water Systems." ENGINEER'S services shall include topographical survey,utility location,
gcotechnical investigation, final design,bid phase and construction phase services in support of the Project.
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 1 of 12
TABLE OF CONTENTS I'aee
ARTICLE1 -SERVICES OF ENGINEER........................................................................................................................3
1.01 Scope.................................................................................................................................................................3
ARTICLE2-OWNER'S RESPONSIBILITIES.......................................................................................................I........3
2.01 General..............................................................................................................................................................3
ARTICLE 3 -TIMES FOR RENDERING SERVICES......................................................................................................3
3.01 General..............................................................................................................................................................3
3.02 Suspension.........................................................................................................................................................3
ARTICLE 4-PAYMENTS TO ENGINEER......................................................................................................................3
4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant...............................................3
4.02 Other Provisions Concerning Payments...........................................................................................................3
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 Tennirration.......................................................................................................................................................6
6.07 Controlling Law................................................................................................................................................7
6.08 Successors,Assigns,and Beneficiaries............................................................................................................7
6.09 Dispute Resolution............................................................................................................................................7
6.10 Hazardous Environmental Condition...............................................................................................................7
6.11 Allocation of Risks............................................................................................................................................7
6.12 Notices...............................................................................................................................................................7
6.13 Survival..............................................................................................................................................................8
6.14 Severability........................................................................................................................................................8
6.15 Waiver...............................................................................................................................................................8
6.16 Headings............................................................................................................................................................8
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 Consultant for Professional Services
Page 2 of 12
ARTICLE I -SERVICES OF ENGINEER Agreement to reflect reasonable costs incurred by
ENGINEER in connection with such suspension and
reactivation and the fact that the time for performance under
1.01 Scope this Agreement has been revised.
A. ENGINEER shall provide the Basic and Additional ARTICLE 4-PAYMENTS TO ENGINEER
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective, 4.01 1lethods of Payment for Services and
ENGINEER is authorized to begin Basic Services as set forth Reimbursable Expenses of ENGINEER
in Exhibit A.
A. For Basic Services. OWNER shall pay ENGINEER
C.(Not Used). for Basic Services performed or furnished under Exhibit A,
Part 1,as set forth in Exhibit C.
ARTICLE 2-OWNER'S RESPONSIBILITIES
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
2.01 General under Exhibit A,Part 2,as set forth in Exhibit C.
A. OWNER shall have the responsibilities set forth C.(Modified) For Reimbursable Expenses. In
herein and in Exhibit B. 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 its Consultants as set
ARTICLE 3-TIMES FOR RENDERING SERVICES 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
3.01 General therewith; otherwise, the parties hereto agree and understand
that OWNER shall not be liable and ENGINEER shall not
A. (Modified) ENGINEER's services and make a claim against OWNER for any such expenses.
compensation under this Agreement have been agreed to for
the design of the Project. ENGINEER's obligation to render 4.02 Other Provisions Concerning Payments
services hereunder will be for whatever period necessary for
the final completion of said services. A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
B. (Not Used). practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. ENGINEER shalt supply detailed
C. (Modified)For purposes of this Agreement the term back-up information along with each invoice in order for the
"day"means a calendar day of 24 hours. OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
3.02 Suspension Exhibit C.
A.(Modified) If OWNER fails within a reasonable B.(Modified) Payment of Invoices. Invoices are due
period of time to give written authorization to proceed with and payable within 30 days after the receipt of the invoice and
any phase of services after completion of the immediately the necessary backup information. If OWNER fails to make
preceding phase, or if OWNER delays ENGINEER's any payment due ENGINEER for services and expenses
services, ENGINEER may, after giving seven days' written within 30 days after receipt of ENGINEER's invoice and
notice to OWNER,suspend services under this Agreement. If backup documentation therefor, the delinquent amount shall
during such seven-day period, OWNER gives written accrue interest at the rate specified in section 2251.025 of the
authorization to proceed or ENGINEER'S services are no Texas Govemment Code. ENGINEER may after giving
longer delayed by OWNER, ENGINEER may not suspend seven days' written notice to OWNER suspend services under
services under this Agreement. this Agreement until ENGINEER has been paid in full all
amounts due for services,expenses,and other related charges.
B. (Modified) If ENGINEER suspends services, However, it is expressly understood and agreed that
ENGINEER may be entitled to equitable adjustment of rates ENGINEER will not charge any interest or penalty as set
and amounts of compensation provided for elsewhere in this forth herein on any portion of an invoice that is disputed and
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
withheld in accordance with paragraph 3.02.0 and that Construction Cost prepared by ENGINEER. If OWNER
ENGINEER will not suspend services under the agreement wishes greater assurance as to probable Constnuction Cost,
on account of a disputed invoice or on account of monies OWNER shall employ an independent cost estimator as
withheld. All payments will be credited first to principal and provided in Exhibit B.
then to interest.
5.02 (Not Used)
C. Disputed hivoice . 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 5.03 Opinions of'I'otal Project Costs
paid.
A. ENGINEER assumes no responsibility for the
D. Payments Upon Termination. accuracy of opinions of Total Project Costs.
In the event of any termination under section 6.06, ARTICLE 6-GENERAL CONSIDERATIONS
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 6.01 Standards of Performance
through the effective date of termination.
A. (Modified)The standard of care for all services lobe
2.(Not Used) performed under this Agreement will be the care and skill
ordinarily used by members of the applicable disciplines,
E.(Modified) Records of ENGINEER's Costs. including, but not limited to, architects and professional
Records of ENGINEER's costs pertinent to ENGINEER's engineers, practicing under similar circumstances at the same
compensation under this Agreement shall be kept in time and in the same locality.
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER B. (Modified) All professionals performing services
upon request at no cost to OWNER. under this Agreement shall be responsible for the technical
accuracy of their services and documents resulting therefrom,
F. Legislative Actions. In the event of legislative and OWNER shall not be responsible for discovering
actions after the Effective Date of the Agreement by any level deficiencies therein. ENGINEER shall correct such
of government that impose taxes, fees, or costs on deficiencies without additional compensation except to the
ENGINEER's services or other costs in connection with this extent such action is directly attributable to deficiencies in
Project or compensation therefor, such new taxes, fees, or OWNER-famished information upon which ENGINEER is
costs shall be invoiced to and paid by OWNER as a authorized to rely as provided in Section 6.0I.E.
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they C. ENGINEER shall perform or furnish professional
shall be in addition to ENGINEER's estimated total engineering and related services in all phases of the Project to
compensation. which this Agreement applies. Such professionals shall be
appropriately licensed and/or registered to practice in the
ARTICLE 5-OPINIONS OF COST State of Texas. ENGINEER shall serve as OWNER's prime
professional for the Project. ENGINEER shall employ such
professionals as ENGINEER deems necessary to assist in the
5.01 Opinions of Probable Construction Cost performance or furnishing of the services. ENGINEER shall
not be required to employ any professional unacceptable to
A. ENGINEER's opinions of probable Construction ENGINEER.
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent D. ENGINEER and OWNER shall comply with
ENGINEER's best judgment as an experienced and qualified applicable Laws or Regulations and OWNER-mandated
professional generally familiar with the industry. However, standards. This Agreement is based on these requirements as
since ENGINEER has no control over the cost of labor, of its Effective Date. Changes to these requirements after the
materials,equipment,or services furnished by others, or over Effective Date of this Agreement may be the basis for
the Contractor's mcdnods of determining prices, or over modifications to OWNER's responsibilities or to
competitive bidding or market conditions, ENGINEER ENGINEER's scope of services, times of performance, or
cannot and does not guarantee that proposals, bids, or actual compensation.
Construction Cost will not vary from opinions of probable
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
E.(Modified) OWNER shall be responsible for, and otherwise furnishing or performing any of the Contractor's
ENGINEER may rely upon, the accuracy and completeness work; or for any decision made on interpretations or
of all requirements, programs, instructions, reports, data, and clarifications of the Contract Documents given by OWNER
other information fumished by OWNER to ENGINEER without consultation and advice of ENGINEER.
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use L.(Modified) the General Conditions for any
such requirements, reports, data, and information in construction contract documents prepared hereunder are to be
performing or furnishing services under this Agreement. the Standard I-omt of Agreement between Owner and
Contractor and as approved by OWNER in writing.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely mariner and shall bear all costs 6.02 Authorized Project Representatives
incident thereto so as not to delay the services of
ENGINEER. A. Contemporaneous with the execution of diis
G. Prior to the commencement of the Construction Agreement, ENGINEER and OWNER shall designate
Phase, OWNER shall notify ENGINEER of any variations specific individuals to act as ENGINEER's and OWNER's
from the language indicated in Exhibit E, "Notice of representatives with respect to the services to be performed or
Acceptability of Work,"or of any other notice or certification fumished by ENGINEER and responsibilities of OWNER
that ENGINEER will be requested to provide to OWNER or under this Agreement. Stich individuals shall have authority
third parties in connection with the Project. OWNER and to transmit instructions, receive information, and render
ENGINEER shall reach agreement on the terms of any such decisions relative to the Project on behalf of each respective
requested notice or certification,and OWNER shall authorize party.
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested. 6.03 (Not Used)
H.(Modified) ENGINEER shall not be required to sign 6.04 Use of Documents
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify,guarantee or warrant A. (Modified) Upon execution of this Agreement, the
the existence of conditions whose existence ENGINEER ENGINEER grants to the OWNER an ownership interest in
cannot ascenain; provided, that ENGINEER has exercised the Instruments of Service. The ENGINEER shall obtain
due diligence and was not otherwise required to certify, similar interests from its consultants consistent with this
guarantee or warrant the existence of such conditions. Agreement. Within seven days of any termination or
expiration of this Agreement, the ENGINEER shall be
I. During the Construction Phase, ENGINEER shall required to tender to OWNER all Instruments of Service;
not supervise,direct,or have control over Contractor's work, provided OWNER has paid all monies, excluding any
nor shall ENGINEER have authority over or responsibility disputed amount, due and owing to ENGINEER in
for the means,methods,techniques,sequences,or procedures accordance with this Agreement. With such ownership
of construction selected by Contractor, for safety precautions interest, it is expressly understood by the patties hereto that
and programs incident to the Contractor's work in progress, the OWNER may use the Instruments of Service for any
nor for any failure of Contractor to comply with Laws and purposes which the OWNER sees fit, including, but not
Regulations applicable to Contractor's furnishing and limited to,subsequent construction, reconstruction,alteration,
perfomning the Work. and/or repairs of the Project. As a condition to the OWNER's
use of the Instruments of Service, the OWNER hereby
J.(Modified)ENGINEER neither guarantees the expressly agrees to remove the ENGINEER's name and all
performance of any Contractor nor assumes responsibility for references to the ENGINEER, and its consultants from the
any Contractor's failure to furnish and perform the Work in Documents. The OWNER hereby releases any and all claims
accordance with the Contract Documents. However,nothing which the OWNER could make arising out of or in
contained in this paragraph shall be construed so as to absolve connection with any reuse of the documents by the OWNER.
ENGINEER from liability for any such failure about which This release of claims for the matters covered in this
ENGINEER knew or should have known existed in the Paragraph 6.04.A shall be for the benefit of the ENGINEER,
exercise of ENGINEER's services under this Agreement. its officers, and employees and sub-consultants, as well as
their successors and assigns.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor(s), subcontractor or B. (Modified) Copies of OWNER-furnished data that
supplier,or of any of the Contractor's agents or employees or may be relied upon by ENGINEER are limited to the printed
any other persons(except ENGINEER's own employees and copies that are delivered to ENGINEER pursuant to Exhibit B
its consultants for which it is legally liable) at the Site or
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
unless otherwise expressly stated or communicated by C. Not used.
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to D. Not used.
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such E. Not used.
electronic files will be at the user's sole risk.
F. At any time, OWNER may request that
C. Copies of Documents that may be relied upon by ENGINEER, at OWNER's sole expense, provide additional
OWNER are limited to the printed copies(also known as hard insurance coverage, increased limits, or revised deductibles
copies) that arc signed or sealed by the appropriate that are more protective than those specified in Exhibit G. If
professional. Files in electronic media format of text, data, so requested by OWNER, with the concurrence of
graphics, or of other types that are furnished by ENGINEER ENGINEER, and if commercially available, ENGINEER
to OWNER are only for convenience of OWNER. Any shall obtain and shall require its Consultants to obtain such
conclusion or information obtained or derived from such additional insurance coverage, different limits, or revised
electronic files will be at the user's sole risk. deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
D. Because data stored in electronic media format can these requirements.
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving 6.06 Terminatlon
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party A.(Modified) The obligations hereunder may be
shall be deemed to have accepted the data thus transferred. terminated:
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period. ENGINEER 1. For cause,
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER. a. (Modified) By either party upon 30 days'
written notice in the event of failure by the other
E. When transferring documents in electronic media party to perform in accordance with the terms hereof
format, ENGINEER makes no representations as to long-term through no fault of the terminating party;or
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating b. By ENGINEER upon seven days' written
systems, or computer hardware differing from those used by notice if ENGINEER is being requested by
ENGINEER at the beginning of this Project. OWNER to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
F. (Modified) Any use of the Documents on any professional.
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases c. Notwithstanding the foregoing, this
ENGINEER from any liability associated solely with the Agreement will not terminate as a result of such
reuse of the Documents. substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
G. If there is a discrepancy between the electronic files to correct its failure to perform and proceeds
and the hard copies,the hard copies govern. diligently to cure such failure within no more than
30 days of receipt thereof;provided,however,that if
H. Any verification or adaptation of the Documents for and to the extent such substantial failure cannot be
extensions of the Project or for any other project will entitle reasonably cured within such 30 day period, and if
ENGINEER to fimrther compensation at rates to be agreed such party has diligently attempted to cure the same
upon by OWNER and ENGINEER. and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
6.05 Insurance up to,but in no case more than 60 days after the date
of receipt of the notice.
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G,"Insurance." 2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
B. Not used.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
Radioactive Material located at or near the Site, including
6.07 Controlling Law type,quantity and location.
A. This Agreement is to be governed by the law of the C.(Modified) If a hazardous Environmental
state in which the Project is located. Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
6.08 Successors,Assigns,and Beneficiaries business clay of the same.
A. OWNER and ENGINEER each is hereby bound and D. It is acknowledged by both parties that
the partners, successors, executors, administrators and legal ENGINEER's scope of services does not include any services
representatives of OWNER and ENGINEER (and to the related to a Hazardous Environmental Condition. In the event
extent permitted by paragraph 6.08.13 the assigns of OWNER ENGINEER or any other party encounters a Hazardous
and ENGINEER) are hereby bound to the other party to this Environmental Condition, ENGINEER may,at its option and
Agreement and to the partners, successors, executors, without liability for consequential or any other damages,
administrators and legal representatives (and said assigns)of suspend performance of services on the portion of the Project
such other party, in respect of all covenants, agreements and affected thereby until OWNER: (i) retains appropriate
obligations of this Agreement. specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
B. Neither OWNER nor ENGINEER may assign, Environmental Condition; and(ii) warrants that the Site is in
sublet, or transfer any rights under or interest (including,but full compliance with applicable Laws and Regulations.
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other, E. OWNER acknowledges that ENGINEER is
except to the extent that any assignment, subletting, or perfomting professional services for OWNER and that
transfer is mandated or restricted by law. Unless specifically ENGINEER is not and shall not be required to become an
stated to the contrary in any written consent to an assignment, .arranger," "operator," "generator," or "transporter" of
no assignment will release or discharge the assignor from any hazardous substances, as defined in the Comprehensive
duty or responsibility under this Agreement. Environmental Response,Compensation,and Liability Act of
1990(CERCLA),which are or may be encountered at or near
C. Unless expressly provided otherwise in this the Site in connection with ENGINEER's activities under this
Agreement: Agreement.
1. Nothing in this Agreement shall be construed to F. if ENGINEER's services under this Agreement
create, impose, or give rise to any duty owed by cannot be performed because of a Hazardous Environmental
OWNER or ENGINEER to any Contractor,Contractor's Condition, the existence of the condition shall justify
subcontractor, supplier, other individual or entity, or to ENGINEER's terminating this Agreement for cause on 30
any surety for or employee of any of them. days'notice.
2. All duties and responsibilities undertaken 6.11 Allocation of Risks
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not A. (Modified) Indemnification. See Exhibit K.
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. 6.12 Notices
6.09 Not Used. A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
6.10 Hazardous Environmental Condition party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
A. OWNER represents to ENGINEER that to the best or by a commercial courier service. Additionally, notices
of its knowledge a Hazardous Environmental Condition does may be given via facsimile or by electronic mail if such notice
not exist. is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
B.(Modified) OWNER has disclosed to the best of upon the date of receipt.
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCBs, Petroleum, Hazardous Waste, or
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
6.13 Survival requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
A. (iVlodified) All express representations, supporting documentation as is required by the Contract
indemnifications, and limitations of liability included in this Documents.
Agreement will survive its completion or termination for any
reason. 5. Asbestos--Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
6.14 Severability fibers into the air above current action levels established
by the United States Occupational Safety and health
A. Any provision or part of the Agreement held to be Administration.
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue 6. Basic Services--The services to be performed
to be valid and binding upon OWNER and ENGINEER,who for or furnished to OWNER by ENGINEER in
agree that the Agreement shall be reformed to replace such accordance with Exhibit A,Part 1,of this Agreement.
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the 7. Bid--Thc offer or proposal of the bidder
intention of the stricken provision. submitted on the prescribed form setting forth the prices
for the Work to be performed.
6.15 Waiver
8, Bidding Documents--The advertisement or
A. Non-enforcement of any provision by either party invitation to Bid, instructions to bidders, the Bid form
shall not constitute a waiver of that provision, nor shall it and attachments, the Bid bond, if any, the proposed
affect the enforceability of that provision or of the remainder Contract Documents,and all Addenda,if any.
of this Agreement.
9. Change Order--A document recommended by
6.16 Headings ENGINEER, which is signed by Contractor and
OWNER to authorize an addition,deletion or revision in
A. The headings used in this Agreement are for general the Work, or an adjustment in the Contract Price or the
reference only and do not have special significance. Contract Times, issued on or after the Effective Date of
the Construction Agreement.
ARTICLE 7- DEFINITIONS
10. Construction Agreement—The written
instrument which is evidence of the agreement,contained
7.01 Defined Terms in the Contract Documents, between OWNER and
Contractor covering the Work.
A. Wherever used in this Agreement (including the
Exhibits hereto)and printed with initial or all capital letters, 11. Construction Contract--The entire and
the terms listed below have the meanings indicated, which integrated written agreement between the OWNER and
are applicable to both the singular and plural thereof: Contractor concerning the Work.
1. Addenda--Written or graphic instruments issued 12. Constnnction Cost--The cost to OWNER of
prior to the opening of Bids which clarify, correct, or those portions of the entire Project designed or specified
change the Bidding Documents. by ENGINEER. Construction Cost does not include
costs of services of ENGINEER or other design
2. Additional Services--The services to be professionals and consultants,cost of land,rights-of-way,
performed for or fumished to OWNER by ENGINEER or compensation for damages to properties,or OWNER's
in accordance with Exhibit A,Part 2 of this Agreement. costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges
3. Agreement--This"Standard Form of Agreement incurred in connection with the Project, or the cost of
between OWNER and ENGINEER for Professional other services to be provided by others to OWNER
Services," including those Exhibits listed in Article 8 pursuant to Exhibit B of this Agreement. Construction
hereof. Cost is one of the items comprising Total Project Costs.
4. Application for Payment--The form acceptable 13. (Modified) Contract Documents—Documents
to ENGINEER which is to be used by Contractor in that establish the rights and obligations of the parties
engaged in construction and include the Construction
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
Agreement between OWNER and Contractor and all 20. Drawings--'Ilia(part of the Contract Documents
documents referenced therein,Addenda(which pertain to prepared or approved by ENGINEER which graphically
the Contract Documents), Contractor's Bid (including shows the scope,extent,and character of the Work to be
documentation accompanying the Bid and any post-Bid performed by Contractor. Shop Drawings are not
documentation submitted prior to the notice of award) Drawings as so defined,
when attached as an exhibit to the Construction
Agreement, the notice to proceed, the bonds, appropriate 21. Effective Date of the Construction Agreement--
certifications, insurance documents the General the date indicated in the Construction Agreement on
Conditions, the Supplementary Conditions, the which it becomes effective, but if no such date is
Specifications and the Drawings as the same are more indicated, it means the date on which the Construction
specifically identified in the Construction Agreement, Agreement is signed and delivered by the last of the two
together with all Written Amendments, Change Orders, parties to sign and deliver.
Work Change Directives, Field Orders, and
professional's written interpretations and clarifications 22. Effective Dute of the Agreement--The date
issued on or after the Effective Date of the Construction indicated in this Agreement on which it becomes
Agreement. Approved Shop Drawings and the reports effective, but if no such date is indicated, it means the
and drawings of subsurface and physical conditions are date on which the Agreement is signed and delivered by
not Contract Documents. the last of the two parties to sign and deliver.
14. Contract Price--The moneys payable by 23. Consultants--Individuals or entities having a
OWNER to Contractor for completion of the Work in contract with ENGINEER to furnish services with
accordance with the Contract Documents and as stated in respect to this Project as ENGINEER's independent
the Construction Agreement. professional associates, consultants, subcontractors, or
vendors.The term ENGINEER includes its Consultants.
15. Contract Times--The numbers of days or the
dates stated in the Construction Agreement to: 24. Field Order--A written order issued by
(i)achieve Final Completion,and(ii)complete the Work ENGINEER which directs minor changes in the Work
so that it is ready for final payment as evidenced by but which does not involve a change in the Contract
ENGINEER's written recommendation of final payment. Price or the Contract Times.
16. Contractor--An individual or entity with whom 25. Final Completion shall mean that all work has
OWNER enters into a Construction Agreement. been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
17. Correction Period--The time after Final subcontractors have been made, all documentation and
Completion during which Contractor must correct, at no warranties have been submitted,all closeout documents
cost to OWNER,any Defective Work,normally one year have been executed and approved by the OWNER,and
after the date of Final Completion or such longer period the Project has been finally accepted by the OWNER.
of time as may be prescribed by Laws or Regulations or
by the terms of any applicable special guarantee or 26. General Conditions-That part of the Contract
specific provision of the Contract Documents. Documents which sets forth terms, conditions, and
procedures that govem the Work to be performed or
18. Defective--An adjective which,when modifying furnished by Contractor with respect to the Project.
the word Work, refers to Work that is unsatisfactory,
faulty, or deficient, in that it does not conform to the 27. Hazardous Environmental Condition--The
Contract Documents, or does not meet the requirements presence at the Site of Asbestos, PCB's, Petroleum,
of any inspection, reference standard, test, or approval Hazardous Waste, or Radioactive Materials in such
referred to in the Contract Documents, or has been quantities or circumstances that may present a substantial
damaged prior to ENGINEER's recommendation of final danger to persons or property exposed thereto in
payment. connection with the Work.
19. Documents--Data, reports, Drawings, 28. Hazardous Waste--The term Hazardous Waste
Specifications, Record Drawings, and other deliverables, shall have the meaning provided in Section 1004 of the
whether in printed or electronic media format, provided Solid Waste Disposal Act (42 USC Section 6903) as
or furnished in appropriate phases by ENGINEER to amended from time to time.
OWNER pursuant to this Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
29. Laws and Regulations; Laws or Regulations-- and submitted by Contractor to ENGINEER to illustrate some
Any and all applicable laws, rules, regulations, portion of die Work.
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts 38. Site--Lands or areas indicated in the Contract
having jurisdiction. Documents as being litmished by OWNER upon which the
Work is to be perfomed, rights-of-way and casements for
30. PCB's--Polychlorinated biphenyls. access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
31. Petroleum—Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions 39. Specifications--That part of the Contract Documents
of temperature and pressure (60 degrees Fahrenheit and consisting of written technical descriptions of materials,
14.7 pounds per square inch absolute), such as oil, equipment, systems, standards, and workmanship as applied
petroleum, fuel oil, oil sludge, oil refuse, gasoline, to the Work and certain administrative details applicable
kerosene,and oil mixed with other non-Hazardous Waste thereto.
and crude oils.
40. Substantial Completion--The time at which the
32. Radioactive Materials--Source, special nuclear, Work(or a specified part thereof) has progressed to the point
or byproduct material as defined by the Atomic Energy where, in the opinion of ENGINEER, the Work (or a
Act of 1954 (42 USC Section 2011 et seq.)as amended specified part thereof) is sufficiently complete, in accordance
from time to time. with the Contract Documents,so that the Work(or a specified
part thereof) can be utilized for the purposes for which it is
33. Record Drawings--The Drawings as issued for intended. The temu "substantially complete" and
construction on which the ENGINEER,upon completion "substantially completed"as applied to all or part of the Work
of the Work, has shown changes due to Addenda or refer to Substantial Completion thereof.
Change Orders and other information which ENGINEER
considers significant based on record documents 41. Supplementary Conditions--That part of the Contract
furnished by Contractor to ENGINEER and which were Documents which amends or supplements the General
annotated by Contractor to show changes made during Conditions.
construction.
42. (Modified) Total Project Costs--The sum of the
34. Reimbursable Expenses--The expenses incurred Construction Cost, allowances for contingencies, the total
directly by ENGINEER in connection with the costs of services of ENGINEER or other design professionals
perfomting or furnishing of Basic and Additional and consultants,cost of land,rights-of-way,compensation for
Services for the Project for which OWNER sliall pay damages to properties,OWNER's costs for legal, accounting,
ENGINEER as indicated in Exhibit C. insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project,and
35. Resident Project Representative—The the cost of other services to be provided by others to OWNER
authorized representative of ENGINEER, if any, pursuant to Exhibit B of this Agreement.
assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project Representative 43. Work--The entire completed construction or the
will be ENGINEER's agent or employee and under various separately identifiable parts thereof required to be
ENGINEER's supervision. As used herein, the term provided under the Contract Documents with respect to this
Resident Project Representative includes any assistants Project. Work includes and is the result of performing or
of Resident Project Representative agreed to by furnishing labor, services, and documentation necessary to
OWNER. The duties and responsibilities of the Resident produce such construction and famishing, installing, and
Project Representative are as set forth in Exhibit D. incorporating all materials and all equipment into such
construction,all as required by the Contract Documents.
36. Samples--Physical examples of materials,
equipment, or workmanship that are representative of 44. Work Change Directive--A written directive to
some portion of the Work and which establish the Contractor issued on or after the Effective Date of the
standards by which such portion of the Work will be Construction Agreement and signed by OWNER upon
judged. recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing
37. Shop Drawings--All drawings, diagrams, or unforeseen subsurface or physical conditions under which
illustrations, schedules, and other data or information which the Work is to be performed or to emergencies. A Work
are specifically prepared or assembled by or for Contractor Change Directive will not change the Contract Price or the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
Contract Times but is evidence that the parties expect that the ENGINEER and supersedes all prior written or oral
change directed or documented by a Work Change Directive understandings. This Agreement may only be amended,
will be incorporated in a subsequently issued Change Order supplemented, modified, or canceled by a duty executed
following negotiations by the parties as to its effect,if any,on written instrument. This Agreement along with the exhibits
the Contract Price or Contract Times. shall be read and construed as the same Agreement.
45. 1Vrrtten Amendment--A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after die Effective Date of the Construction Agreement and
normally dealing with the non-architectural or non-technical
rather than strictly construction-related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
eight(8)pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two(2)pages.
C. Exhibit C, "Payments to ENGINEER for Services
and Reimbursable Expenses,"consisting of two(2)pages.
D. Exhibit D, "Duties, Responsibilities and Limitadons
of Authority of Resident Project Representative,"is not used.
E. Exhibit E,"Notice of Acceptability of Work," is not
used.
F. Exhibit F,"Construction Cost Limit," is not used.
G. Exhibit G,"Insurance,"consisting of two(2)pages.
H. Exhibit H,"Dispute Resolution;'is not used.
I. Exhibit 1,"Allocation of Risks,"is not used.
J. Exhibit J,"Special Provisions"is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two(2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages I to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I 1 of 12
IN WITNESS WHEREOF,the parties hereto have
executed this Agreement,the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN ENG EN ING,INC.
GARRISON C.BRUMBACK
Printed Name t 5 �C�cJ,s
Title: City Manager Title 51. ram/
Date Signed: Date Signed
Address for giving notices: Address for giving notices:
P.O.BOX 424 4635 SOUTHWEST FREEWAY,SUITE 1000
BAYTOWN,TEXAS 77422-0424 HOUSTON,TX 77027-7139
Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A):
Pete Lester Name:David W.Kasper,P.E.
Title:Acting Director of Engineering Title: Vice President
Phone Number: (281)420-6549 Phone Number;(713)462-3242
Facsimile Number: (281)420-6586 Facsimile Number:(713)462-3262
E-Mail Address: pete.lestet@baytown.org E-Mail Address: dkasper@claunchmiller.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 8 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINES
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)
A 1.01 Preliminary Engineering Phase—Not used
A 1.02 Final Design Phase
A. Upon written authorization from OWNER,ENGINEER shall:
1. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings
indicating the scope,relationships, forms size and appearance of the Project by means of plans,profiles,
construction details and specifications together with the extent and character of the Work to be performed
and furnished by Contractor, including the quality levels for major materials. Specifications will be
prepared, where appropriate, in conformance with the 16-division format of the Construction
Specifications Institute or other format agreed to in writing by OWNER and ENGINEER.
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities,including,but
not limited to,those required approvals the Texas Commission on Environmental Quality.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costs known to ENGINEER,with each major component separately itemized,including the
following, which will be separately itemized: opinion of probable Construction Cost, allowances for
contingencies and for the estimated total costs of design, professional, and related services provided by
ENGINEER and, on the basis of information furnished by OWNER, allowances for other items and
services included within the definition of Total Project Costs
4. Perform or provide the following additional Final Design Phase tasks or deliverables:
a. Prepare Contract Documents including plans, specifications, and bidding documents associated
with the design of the elevated water storage tank including: site drainage, plan sheets, site
utilities, elevated water storage tank, electrical and controls, mechanical, and structural
components based on the work performed in the Preliminary Engineering Phase, including
changes obtained from the review process of the preliminary engineering report. Plans to include
civil,mechanical,and electrical components for the facilities.
b. Perform electrical design for the Project, which shall include but not be limited to, the following
items:
➢ Electrical service equipment,
➢ Tank interior lighting,
➢ FAA lighting design,
➢ Interior and tank top receptacles,and
➢ SCADA system.
Page 1 of 8 pages
(Exhibit A—Engineer's Services)
c. Prepare a site-specific Storm Water Pollution Prevention Plan(SWPPP) for the Project.
d. Employ a subconsultant to perform the following geotechnical engineering services:
➢ Perform one (1) soil boring to a maximum depth of eighty feet at the proposed water tank
site.
➢ Perform three (3) soil borings to a maximum depth of sixty feet each at the perimeter of the
proposed water tank site.
➢ The subsurface soils will be characterized in accordance with their physical and engineering
characteristics by means of Atterberg Limits, moisture content,density,strengths,and percent
passing the N 200 sieve analysis,as appropriate.
➢ A description of the site and general soil and geologic conditions encountered will be
described and assessed.
➢ The results will be summarized in a report prepared by a Licensed Engineer.
e. Employ a subconsultant to perform the following surveying services:
➢ Topographic survey of the proposed site(2.819 acres)and edge of pond on adjacent property.
➢ Establish two(2)on-site control points.
4. Make appropriate recommendations to the OWNER to adjust the Project size,quality or budget if at any
time the ENGINEER's estimate of the probable Construction Cost or Total Project Costs exceed the
OWNER's budget.
5. Provide three(3) full-size sets of 60% documents for the OWNER's review and comment within ninety
(90)calendar days of authorization to begin services and review it with OWNER.
6. Revise the 60%documents in response to OWNER's and other parties'comments,as appropriate.
7. Provide six(6)full-size sets of 901/o documents for the OWNER's review and comment within thirty(30)
calendar days of receiving OWNER's comments on the 60%documents.
8. Revise the documents in response to OWNER's and other parties' comments,as appropriate.
9. Provide three full-size sets of 100% Bidding Documents for the OWNER's review and comment within
thirty(30)calendar days of after receiving OWNER's comments on the 90%documents.
10. Revise the documents in response to OWNER's and other parties' comments,as appropriate,and furnish
fourteen(14) final bound copies, one (1)unbound copy, and one (1) reproducible mylar of the revised
1001/o Bidding Documents and a revised opinion of probable Construction Cost to the OWNER within
ten(10)days after completion of reviewing 100%Bidding Documents with OWNER.
B. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date
when the final copies of the revised documents have been delivered to and accepted by OWNER.
A 1.03 Bidding or Negodaring Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the Design Development Phase, and upon written authorization by
OWNER to proceed,ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work.
2. Issue Addenda as appropriate to clarify,correct,or change the Bidding Documents.
Page 2 of 8 pages
(Exhibit A—Engineer's Services)
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. (Modified) Attend the Mandatory Pre-Bid Conference, prepare Bid tabulation sheets, assemble contract
documents,assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work.
5. (Added) Assist in connection with Bid protests, rebidding, or re-negotiating contracts for construction,
materials,equipment,or services.
B. (Ivtodified) 'ile Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A 1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER,ENGINEER shall:
1. General Administration of Constrttction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. 'Ile extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to
Contractor will be issued through ENGINEER,who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in die selection of an
independent testing laboratory to perform the services identified in paragraph B2.01, if any.
3. Pre-Construction Conference. Participate in a Pre-Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate,establish baselines and benchmarks for locating the Work
which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified)Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests,and as ENGINEER and/or OWNER deems
necessary, in order to observe as an experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by ENGINEER,and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and
the Contract Documents, but rather are to be limited to spot checking, selective sampling, and
similar methods of general observation of the Work based on ENGINEER's exercise of
professional judgment as assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations, ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER
shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative,if any,at the Site,will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase,and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
Page 3 of 8 pages
(Exhibit A- Engineer's Services)
professional, to provide for OWNER a greater degree of confidence that the completed Work
will substantially conform to the Contract Documents and that the integrity of the design concept
of the completed Project as a functioning whole as indicated in the Contract Documents has
been implemented and preserved by Contractor. ENGINEER shall not,during such visits or as
a result of such observations of Contractor's work in progress,supervise,direct,or have control
over Contractor's work, nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of construction selected by Contractor,
for safety precautions and programs incident to Contractor's work, or for any failure of
Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. Accordingly, ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its
work in accordance with the Contract Documents.
c. (Added) Employ a subconsultant to provide additional periodic construction observation
services to increase site presence during the Constn►ction Phase. 'fhe additional period
construction observation services shall be above and beyond the normal construction
administration services required of the Engineering in subsection (a) of this section. These
services shall include more extensive on-site observations of work in progress to provide further
protection for the OWENER against defects and deficiencies in the work of the Contractors and
shall include at a minimum the following:
➢ Steel Erection and Welding
• Preconstruction meeting with foreman,check welder's certification papers;
• Check dimensions of steel plates for correct thickness;
• Check edge preparation and bevels of plates;
• Check surfaces for irregularities such as laminations and cracks;
• Check joint geometry and fit-up during erection;
• Observe proper welding procedures during erection;
• Check back gouging or back grinding is performed;
• Check all accessories for correct size and location;
• Select X-ray locations and observe film placement;
• Check all film for discontinuities and incomplete joint penetration;
• Check structure for removal of erection lugs and grinding of burs;and
• Check grinding of steel lugs and properly prepared for painting.
➢ Protective Coating Application
• Pre-con meeting with foreman;
• Check shop blasting for profile and priming for thickness;
• Check coating products to verify they meet specifications;
• Determine thickness and condition of shop-applied prime coats;
• Check blast material and anchor profiles of steel;
• Check mixing and application of each of the coating products;
• Check dry film thickness aRer each coat is cured and before next coat is applied;and
• Monitor testing of immersed areas for pin-holes or holidays.
G. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
7. Clarifications and Interpretations;Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
Page 4 of 8 pages
(Exhibit A—Engineer's Services)
the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or-equal." Evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor,but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. (Modified)Disagreements benveen OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and
progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show
partiality to OWNER or Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWNER, based on such observations and review, that, to the best of ENGINEER's
knowledge, information and belief,Contractor's work has progressed to the point indicated, the
quality of such work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in the recommendation),and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's
responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's
recommendations of payment will include final determinations of quantities and classifications
of Contractor's work (subject to any subsequent adjustments allowed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph A 1.04.A.S.a are
expressly subject to the limitations set forth in paragraph A 1.04.A.S.b and other express or
general limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check die quality or quantity of Contractor's work as
Page 5 of 8 pages
(Exhibit A—Engineer's Services)
it is performed and furnished have been exhaustive, extended to every aspect of Contractor's
work in progress, or involved detailed inspections of the Work beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither
ENGINEER's review of Contractor's work for the purposes of recommending payments nor
ENGINEER's recommendation of any payment including final payment will impose on
ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for
the means, methods, techniques, sequences, or procedures of construction or safety precautions
or programs incident thereto,or Contractor's compliance with Laws and Regulations applicable
to Contractor's furnishing and perforating the Work. It will also not impose responsibility on
ENGINEER to make any examination to ascertaur how or for what purposes Contractor has
used the moneys paid on account of the Contract Price,or to determine that title to any portion
of the work in progress, materials, or equipment has passed to OWNER free and clear of any
liens, claims,security interests,or encumbrances,or that there may not be other matters at issue
between OWNER and Contractor that might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (Modified) Receive bonds,certificates,or other evidence of insurance not previously submitted
and required by the Contract Documents, certificates of inspection, tests and approvals, Shop
Drawings, Samples and other data approved as provided under paragraph A 1.04.A.9, and the
annotated record documents which are to be assembled by Contractor in accordance with the
Contract Documents to obtain final payment. The extent of such ENGiNEER's review will be
limited as provided in paragraph A 1.04.A.9.
b. ENGINEER shall transmit these documents to OWNER within ten (10) days of receipt of
documents from Contractor.
c. (Added) Preparing and furnishing to OWNER Record Drawings on reproducible mylar and in
adobe .pdf format showing appropriate record information based on Project annotated record
documents received from Contractor.
16. Inspection. Promptly after notice from Contractor that Contractor considers the entire Work ready for its
intended use, in company with OWNER and Contractor,conduct an inspection to determine if the Work
is finally complete. ENGINEER shall prepare a punch-lists as necessary for the Work to achieve final
completion.
17. (Modified) Final Notice of Acceptability of the {York. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E(the"Notice of Acceptability of Work")that to
the best of ENGINEER's knowledge,information and belief and upon the exercise of ENGINEER'S due
diligence,the Work is acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase wilt commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to the
Contractor.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
PART 2—ADDITIONAL SERVICES
A2.01 Additional Services Requiring OjYNER's Authorization in Advance
Page 6 of 8 pages
(Exhibit A— Engineer's Services)
A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of
the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement.
1. (Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements; review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER.
2. (Modified)Services resulting from significant changes in the scope,extent,or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including,but not limited to,
changes in size, OWNER's schedule, or character of construction; and revising previously accepted
studies, reports, Drawings, Specifications, or Contract Documents when such revisions arc required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
3. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A 1.01.A.4.
4. Services required as a result of OWNER's providing incomplete or incorrect Project information with
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
Section 6.0I.EA of the Agreement.
5. Providing renderings or models for OWNER's use.
6. Undertaking investigations and studies including,but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating
processes available for licensing, and assisting OWNER in obtaining process licensing;detailed quantity
surveys of materials, equipment, and labor, and audits or inventories required in connection with
construction performed by OWNER.
7. Furnishing services of ENGINEER's Consultants for other than Basic Services.
8. Services attributable to more prime construction contracts than specified in paragraph A 1.03.C.
9. Services during out-of-area travel required of ENGINEER other than for visits to the Site or OWNER's
office.
10. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value architectural, and constructibility review requested by OWNER; and performing or furnishing
services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a
result of such review processes.
11. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
12. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
13. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
Page 7 of 8 pages
(Exhibit A—Engineer's Services)
14.Other services performed or furnished by ENGINEER not otherwise provided for hi this Agreement.
15. Property descriptions.
16. (Modified)Property,casement,right-of-way,and other special surveys or data,including
eslablislung relevant reference points.
17. (Added) Environmental assessments,audits,investigations and impact statements,and other relevant
environmental or cultural studies as to the Project,the Site,and adjacent areas.
18. (Added) Additional services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3)Work damaged
by fire or other cause during construction,or(4)acceleration of die progress schedule involving services
beyond normal working hours.
PART 2—ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
Not Included
A2.02 Required Additional Services
Not Included
Page 8 of 8 pages
(Exhibit A—Engineer's Services)
This is EXHIBIT It, consisting of 2 pages, referred to in and
part 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 die 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. However,nothing herein shall require the City to
tender such information in any particular format-
C. (Modified) Following ENGINEER's assessment of initially-available Project information and data and upon
ENGINEER's written request, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. (Not Used).
2. (Not Used).
3. (Not Used).
4. (Not Used).
5. (Not Used).
6. (Not Used).
D. (Not Used).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as
required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
H. (Not Used).
Page I of 2 pages
(Exhibit B-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 famish services in regard to the Project, including, but not limited to, cost estimating, project
peer review,value architectural,and constructability review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. (Modified) if OWNER designates a construction manager or an individual or entity other than, or in addition
to, ENGNEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties,responsibilities,and authority of ENGINEER.
M. Attend the pre-bid conference, bid opening,pre construction conferences,construction progress and other job
related meetings,and Substantial Completion and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNER's on-site representative to ENGINEER
during construction phase.
Page 2 of 2 pages
(Exhibit B-OWNER's Responsibilities)
"Phis is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEE
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and Appropriate amounts have been incorporated in
supplemented to include the following agreement of the cost not to exceed to account for labor,
the parties: overhead, profit,and Reimbursable Expenses.
ARTICLE 4--PAYMENTS TO THE ENGINEER 4. Not Used.
C4.01 For Basic Services Having A Determined 5. The portion of the amount billed for
Scope —Cost not to Exceed Method of ENGINEER's services will be based upon total
Payment services actually completed during the billing
period.
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
C4.02 For Basic Services Having An Undetermined
1. (Modified) A cost not to exceed Scope — Direct Labor Costs Times a Factor
amount of $102,490.00, based upon the rate Method of Payment
schedule, which is attached as Appendix 1 of
Exhibit C and incorporated herein for all intents A. (Not Used).
and purposes. The cost not to exceed does not
include those Engineer's Consultant's charges as C4.03 For Additional Services
provided below in this Article 4, Subparagraph
C4.05. Additionally, the cost not to exceed will A. OWNER shall pay ENGINEER for
be distributed at the completion of each phase in Additional Services as follows:
an amount not exceeding the following for each
task: 1. General. For services of ENGINEER's
employees engaged directly on the Project
1. Design Phase pursuant to paragraph A2.01 or A2.02 of Exhibit
a. Civil&Mechanical..............$60,680.00 A of the Agreement, except for services as a
b. Electrical&SCADA ..........$ 12,780.00 consultant or witness under paragraph
c. SWPPP................................$ 1,600.00 A2.01.A.13, an amount equal to ENGINEER's
2. Bidding/Negotiating Phase............S2,330.00 Direct Labor Costs based upon the rate schedule,
3. Construction Phase......................$25,100.00 which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and
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 shall not exceed $0.00
herein to be consistent with services actually without the prior written consent of the Owner.
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by 2. (Deleted).
the OWNER.
C4.04 For Reimbursable Expenses
3. The cost not to exceed includes
compensation for ENGINEER's services and A. (Modified) OWNER shall pay ENGINEER
services of its Consultants(with the exception of for Reimbursable Expenses at the rate set forth in
those outlined in paragraph C4.05), if any. Appendix 2 of this Exhibit C. Before the OWNER
Page 1 of 2 pages
(Exhibit C -Basic Services With Determined Scope--Cost not to exceed Method)
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the 4.07 Rate Schedule
OWNER of any expense that exceeds $1000.00 for
which the ENGINEER seeks reimbursement. A.(Modified) The Rate Schedule includes
Reimbursable Expenses shall not exceed the the cost of customary and statutory benefits
following: including, but not limited to, social security
contributions, unemployment, excise and payroll
a. Final Design Phase........................5 3,000.00 taxes, workers' compensation, health and retirement
b. Bid Phase......................................$ 2,000.00 benefits, bonuses, sick leave, vacation, and holiday
c. Construction Phase.......................$ 1,650.00 pay applicable thereto; the cost of general and
administrative overhead, which includes salaries and
B. (Modified) Reimbursable Expenses include wages of principals and employees engaged in
the following categories: mileage, parking tolls, long business operations not directly chargeable to
distance, reproduction of Drawings, Specifications, projects, plus non-Project operating costs, including
Bidding Documents,and similar Project-related items but not limited to,business taxes, legal, rent,utilities,
in addition to those required under Exhibit A, and, if office supplies, insurance, and other operating costs;
authorized in advance by OWNER. plus operating margin or profit.
C. The amounts payable to ENGINEER for B. External Reimbursable Expenses and
Reimbursable Expenses will be the Project-related ENGINEER's Consultant's Fees include
internal expenses actually incurred or allocated by ENGINEER's overhead and profit associated with
ENGINEER,plus all invoiced external Reimbursable ENGINEER's responsibility for the administration of
Expenses allocable to the Project, the latter such services and costs.
multiplied by a Factor of(I.10) to the extent noted in
Appendix 2 of this Exhibit C. C4.08 Other Provisions Concerning Payment
D. Not Used. A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
E. (Added) The OWNER must approve all identified in paragraphs C4.01 and C4.03, will be
travel expenses before the same are incurred. If such based on the Rate Schedule for the cumulative hours
approval is not obtained, the OWNER shall not be charged to the Project during the billing period by all
liable for such travel expenses. of ENGINEER's employees, plus Reimbursable
Expenses and ENGINEER's Consultant's charges, if
C4.05 For ENGINEER's Consultant's Charges any.
A. (Modified) Whenever compensation to B. If ENGINEER, at any time during the term
ENGINEER herein is stated to include charges of of this agreement, incurs a debt, as the ward is
ENGINEER's Consultants, those charges shall be the defined in section 2-662 of the Code of Ordinances
amounts billed by ENGINEER's Consultants to of the City of Baytown, it shall immediately notify
ENGINEER times a Factor of I.I. The consultant the OWNER's Director of Finance in writing. if the
charges shall not exceed the following amounts OWNER's Director of Finance becomes aware that
specified for each portion of the Project. The charges the ENGINEER has incurred a debt, the OWNER's
include the factor,and are as follows: Director of Finance shall immediately notify the
ENGINEER in writing. If the ENGINEER does not
Geotechnical......................................$ 16,880.00 pay the debt within 30 days of either such
Topographic Surveying.....................$ 4,070.00 notification, the OWNER's Director of Finance may
Additional Observation Services........$16,500.00 deduct funds in an amount equal to the debt from any
payments owed to the ENGINEER under this
C4.06 Direct Labor Costs agreement, and the ENGINEER waives any recourse
therefor.
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).
Page 2 of 2 pages
(Exhibit C-All Other Services/Charges--Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIIIIT C
RATESCHEDULE
Employee Classification Billing Rate
Senior Project Manager.....................................................................................$211.99/HR
SeniorDesigner.................................................................................................$144.01/MR
CADDDesigner................................................................................................$ 89.50&IR
Construction Manager.......................................................................................$144.01/HR
ConstructionClerk............................................................................................$ 71.20/11R
Clerical..............................................................................................................$ 52.90/HR
Page 1 of 1 pages
(Appendix t to Exhibit C Rate Schedule)
APPENDIX 2 Or EXHIBIT C
REINIBURSENIENT OF COSTS
RE1M13URSABLE EXPENSES
Reasonable Out of Baytown/Houston Area Travel Expenses
(Air, I•Iotel,Rental,etc.). .......................................................................................................... .@ Cost
Mileage(Standard Car or Truck)....................................................................................IRS Approved Rate
Page 1 of I pages
(Appendix 2 to Exhibit C Reimbursement of Costs)
'['his is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
7r-
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G 6.05 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 ENGMEER'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: S1,000,000
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 architects,engineers and/or design companies.
Page 1 of 2 Pages
(Exhibit G- Insurance)
b. Claims-made farm is acceptable.
c. Coverage will be in force for three(3)years after project is completed.
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail, return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of A:VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E&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 furnished to City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to
execution of this agreement.
f. Upon request of and without cost to City of Baytown, loss runs(claims listing)of any and/or all insurance
coverage shall be furnished to City of Baytown's representative.
Page 2 of 2 pages
(Exhibit G-Insurance)
This is EXHIBIT K, consisting of 2 pages,referred to in and
part of the Agreement between OWNER and ENGINEERt
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 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 ANY PERSON,
FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF
CONTRACT TO THE EXTENT ARISING OUT OF OR IN
CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL
TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE
TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
ENGINEER OR THE ENGINEER'S AGENT, CONSULTANT UNDER
CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER
EXERCISES CONTROL (COLLECTIVELY ENGINEER'S PARTIES).
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 ENGINEER'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT
OR SOLE NEGLIGENCE AS WELL AS THE ENGINEER'S PARTIES'
INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT. 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 ANY PERSON OTHER THAN THE
ENGINEER'S PARTIES. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH
THE OWNER IS INDEMNIFIED, ENGINEER FURTI4ER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE
Page I of 2 Pages
(Exhibit K- Indemnification)
INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE
TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT.
By this Agreement the Owner does not consent to litigation or suit, and the owner hereby
expressly revokes any consent to litigation that it may have granted by the terms of this
Contract or any other contract or agreement, any charter or applicable state law.
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 ti►e Contract
Documents.
Page 2 of 2 Pages
(Exhibit K-Indemnification)
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the 2 6tbday of March ,2010("Effective Date").
Between
The City of Baytown ("OWNER")
and
HDR ENGINEERING, INC. ("ENGINEER").
OWNER intends to engage ENGINEER to perform engineering services related to design and associated services
for the North Main Water Tower Project located near the intersection of Cedar Bayou-Lynchberg Road and N.Main
Street (the "Project") for and on behalf of the OWNER. The Project will entail the elevated water tank and
appurtenances, as well as associated site work, controls, structural, piping, and mechanical/electrical components,
all of which will be designed to meet the criteria established by the City of Baytown and the Texas Commission on
Environmental Quality (TCEQ) regulations (Title 30, Part 1, Chapter 290 of Texas Administrative Code) for the
development of public water supply, storage, pumping, and transmission facilities as identified in "Rules and
Regulations for Public Water Systems." ENGINEER'S services shall include topographical survey,utility location,
geotechnical investigation,final design,bid phase and construction phase services in support of the Project.
OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 1 of 12
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 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 Pro j ect Costs.......................................................................................................................4
ARTICLE 6-GENERAL CONSIDERATIONS................................................................................................................4
6.01 Standards of Performance.................................................................................................................................4
6.02 Authorized Project Representatives.......... ...... ........ 5
..... .... ... ..... .......... .......................
6.03 Design without Construction Phase Services...................................................................................................5
6.04 Use of Documents.............................................................................................................................................5
6.05 Insurance............................................................................................................................................................6
6.06 Termination.......................................................................................................................................................6
6.07 Controlling Law................................................................................................................................................7
6.08 Successors,Assigns,and Beneficiaries............................................................................................................7
6.09 Dispute Resolution............................................................................................................................................7
6.10 Hazardous Environmental Condition...............................................................................................................7
6.11 Allocation of Risks............................................................................................................................................7
6.12 Notices...............................................................................................................................................................7
6.13 Survival..............................................................................................................................................................8
6.14 Severability........................................................................................................................................................ 8
6.15 Waiver............................................................................................................................................................... 8
6.16 Headings............................................................................................................................................................8
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 Consultant for Professional Services
Page 2 of 12
ARTICLE 1 -SERVICES OF ENGINEER Agreement to reflect reasonable costs incurred by
ENGINEER in connection with such suspension and
reactivation and the fact that the time for performance under
1.01 Scope this Agreement has been revised.
A. ENGINEER shall provide the Basic and Additional ARTICLE 4-PAYMENTS TO ENGINEER
Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective, 4.01 Methods of Payment for Services and
ENGINEER is authorized to begin Basic Services as set forth Reimbursable Expenses of ENGINEER
in Exhibit A.
A. For Basic Services. OWNER shall pay ENGINEER
C. (Not Used). for Basic Services performed or furnished under Exhibit A,
Part 1,as set forth in Exhibit C.
ARTICLE 2-OWNER'S RESPONSIBILITIES
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
2.01 General under Exhibit A,Part 2,as set forth in Exhibit C.
A. OWNER shall have the responsibilities set forth C. (Modified) For Reimbursable Expenses. In
herein and in Exhibit B. addition to payments provided for in paragraphs 4.01.A and
4.01.B, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and its Consultants as set
ARTICLE 3-TIMES FOR RENDERING SERVICES 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
3.01 General therewith; otherwise, the parties hereto agree and understand
that OWNER shall not be liable and ENGINEER shall not
A. (Modified) ENGINEER'S services and make a claim against OWNER for any such expenses.
compensation under this Agreement have been agreed to for
the design of the Project. ENGINEER's obligation to render 4.02 Other Provisions Concerning Payments
services hereunder will be for whatever period necessary for
the final completion of said services. A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
B. (Not Used). practices and will be submitted to OWNER by ENGINEER,
unless otherwise agreed. ENGINEER shall supply detailed
C. (Modified)For purposes of this Agreement the term back-up information along with each invoice in order for the
"day"means a calendar day of 24 hours. OWNER to effectively evaluate the fees and charges. The
amount billed in each invoice will be calculated as set forth in
3.02 Suspension Exhibit C.
A.(Modified) If OWNER fails within a reasonable B.(Modified) Payment of Invoices. Invoices are due
period of time to give written authorization to proceed with and payable within 30 days after the receipt of the invoice and
any phase of services after completion of the immediately the necessary backup information. If OWNER fails to make
preceding phase, or if OWNER delays ENGINEER's any payment due ENGINEER for services and expenses
services, ENGINEER may, after giving seven days' written within 30 days after receipt of ENGINEER's invoice and
notice to OWNER,suspend services under this Agreement. If backup documentation therefor, the delinquent amount shall
during such seven-day period, OWNER gives written accrue interest at the rate specified in section 2251.025 of the
authorization to proceed or ENGINEER'S services are no Texas Government Code. ENGINEER may after giving
longer delayed by OWNER, ENGINEER may not suspend seven days'written notice to OWNER suspend services under
services under this Agreement. this Agreement until ENGINEER has been paid in full all
amounts due for services,expenses,and other related charges.
B. (Modified) If ENGINEER suspends services, However, it is expressly understood and agreed that
ENGINEER may be entitled to equitable adjustment of rates ENGINEER will not charge any interest or penalty as set
and amounts of compensation provided for elsewhere in this forth herein on any portion of an invoice that is disputed and
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
withheld in accordance with paragraph 3.02.0 and that Construction Cost prepared by ENGINEER. If OWNER
ENGINEER will not suspend services under the agreement wishes greater assurance as to probable Construction Cost,
on account of a disputed invoice or on account of monies OWNER shall employ an independent cost estimator as
withheld. All payments will be credited first to principal and provided in Exhibit B.
then to interest.
5.02 (Not Used)
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 5.03 Opinions of Total Project Costs
paid.
A. ENGINEER assumes no responsibility for the
D. Payments Upon Termination. accuracy of opinions of Total Project Costs.
In the event of any termination under section 6.06, ARTICLE 6-GENERAL CONSIDERATIONS
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 6.01 Standards of Performance
through the effective date of termination.
A. (Modified)The standard of care for all services to be
2.(Not Used) performed under this Agreement will be the care and skill
ordinarily used by members of the applicable disciplines,
E.(Modified) Records of ENGINEER's Costs. including, but not limited to, architects and professional
Records of ENGINEER's costs pertinent to ENGINEER's engineers, practicing under similar circumstances at the same
compensation under this Agreement shall be kept in time and in the same locality.
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER B. (Modified) All professionals performing services
upon request at no cost to OWNER. under this Agreement shall be responsible for the technical
accuracy of their services and documents resulting therefrom,
F. Legislative Actions. In the event of legislative and OWNER shall not be responsible for discovering
actions after the Effective Date of the Agreement by any level deficiencies therein. ENGINEER shall correct such
of government that impose taxes, fees, or costs on deficiencies without additional compensation except to the
ENGINEER's services or other costs in connection with this extent such action is directly attributable to deficiencies in
Project or compensation therefor, such new taxes, fees, or OWNER-furnished information upon which ENGINEER is
costs shall be invoiced to and paid by OWNER as a authorized to rely as provided in Section 6.01.E.
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they C. ENGINEER shall perform or furnish professional
shall be in addition to ENGINEER's estimated total engineering and related services in all phases of the Project to
compensation. which this Agreement applies. Such professionals shall be
appropriately licensed and/or registered to practice in the
ARTICLE 5-OPINIONS OF COST State of Texas. ENGINEER shall serve as OWNER's prime
professional for the Project. ENGINEER shall employ such
professionals as ENGINEER deems necessary to assist in the
5.01 Opinions of Probable Construction Cost performance or furnishing of the services. ENGINEER shall
not be required to employ any professional unacceptable to
A. ENGINEER's opinions of probable Construction ENGINEER.
Cost provided for herein are to be made on the basis of
ENGINEER's experience and qualifications and represent D. ENGINEER and OWNER shall comply with
ENGINEER's best judgment as an experienced and qualified applicable Laws or Regulations and OWNER-mandated
professional generally familiar with the industry. However, standards. This Agreement is based on these requirements as
since ENGINEER has no control over the cost of labor, of its Effective Date. Changes to these requirements after the
materials, equipment, or services furnished by others, or over Effective Date of this Agreement may be the basis for
the Contractor's methods of determining prices, or over modifications to ONVNER's responsibilities or to
competitive bidding or market conditions, ENGINEER ENGINEER's scope of services, times of performance, or
cannot and does not guarantee that proposals, bids, or actual compensation.
Construction Cost will not vary from opinions of probable
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
E.(Modified) OWNER shall be responsible for, and otherwise furnishing or performing any of the Contractor's
ENGINEER may rely upon, the accuracy and completeness work; or for any decision made on interpretations or
of all requirements, programs, instructions, reports, data, and clarifications of the Contract Documents given by OWNER
other information furnished by OWNER to ENGINEER without consultation and advice of ENGINEER.
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER. ENGINEER may use L.(Modified) The General Conditions for any
such requirements, reports, data, and information ul construction contract documents prepared hereunder are to be
performing or furnishing services under this Agreement. the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs 6.02 Authorized Project Representatives
incident thereto so as not to delay the services of
ENGINEER. A. Contemporaneous with the execution of this
G. Prior to the commencement of the Construction Agreement, ENGINEER and OWNER shall designate
Phase, OWNER shall notify ENGINEER of any variations specific individuals to act as ENGINEER's and OWNER's
from the language indicated in Exhibit E, "Notice of representatives with respect to the services to be performed or
Acceptability of Work,"or of any other notice or certification furnished by ENGINEER and responsibilities of OWNER
that ENGINEER will be requested to provide to OWNER or under this Agreement. Such individuals shall have authority
third parties in connection with the Prod ect. OWNER and to transmit instructions, receive information, and render
ENGINEER shall reach agreement on the terms of any such decisions relative to the Project on behalf of each respective
requested notice or certification, and OWNER shall authorize party.
such Additional Services as are necessary to enable
ENGINEER to provide the notices or certifications requested. 6.03 (Not Used)
H. (Modified) ENGINEER shall not be required to sign 6.04 Use of Documents
any documents, no matter by whom requested, that would
result in ENGINEER's having to certify,guarantee or warrant A. (Modified) Upon execution of this Agreement, the
the existence of conditions whose existence ENGINEER ENGINEER grants to the OWNER an ownership interest in
cannot ascertain; provided, that ENGINEER has exercised the Instruments of Service. The ENGINEER shall obtain
due diligence and was not otherwise required to certify, similar interests from its consultants consistent with this
guarantee or warrant the existence of such conditions. Agreement. Within seven days of any termination or
expiration of this Agreement, the ENGINEER shall be
I. During the Construction Phase, ENGINEER shall required to tender to OWNER all Instruments of Service;
not supervise, direct, or have control over Contractor's work, provided OWNER has paid all monies, excluding any
nor shall ENGINEER have authority over or responsibility disputed amount, due and owing to ENGINEER in
for the means,methods,techniques, sequences, or procedures accordance with this Agreement. With such ownership
of construction selected by Contractor, for safety precautions interest, it is expressly understood by the parties hereto that
and programs incident to the Contractor's work in progress, the OWNER may use the Instruments of Service for any
nor for any failure of Contractor to comply with Laws and purposes which the OWNER sees fit, including, but not
Regulations applicable to Contractor's furnishing and limited to,subsequent construction, reconstruction, alteration,
performing the Work. and/or repairs of the Project. As a condition to the OWNER's
use of the Instruments of Service, the OWNER hereby
J.(Modified)ENGINEER neither guarantees the expressly agrees to remove the ENGINEER's name and all
performance of any Contractor nor assumes responsibility for references to the ENGINEER, and its consultants from the
any Contractor's failure to furnish and perform the Work in Documents. The OWNER hereby releases any and all claims
accordance with the Contract Documents. However,nothing which the OWNER could make arising out of or in
contained in this paragraph shall be construed so as to absolve connection with any reuse of the documents by the OWNER.
ENGINEER from liability for any such failure about which This release of claims for the matters covered in this
ENGINEER knew or should have known existed in the Paragraph 6.04.A shall be for the benefit of the ENGINEER,
exercise of ENGINEER's services under this Agreement. its officers, and employees and sub-consultants, as well as
their successors and assigns.
K. (Modified) ENGINEER shall not be responsible for
the acts or omissions of any Contractor(s), subcontractor or B. (Modified) Copies of OWNER-furnished data that
supplier,or of any of the Contractor's agents or employees or may be relied upon by ENGINEER are limited to the printed
any other persons (except ENGINEER's own employees and copies that are delivered to ENGINEER pursuant to Exhibit B
its consultants for which it is legally liable) at the Site or
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
unless otherwise expressly stated or communicated by C. Not used.
OWNER. Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to D. Not used.
ENGINEER are only for convenience of ENGINEER. Any
conclusion or information obtained or derived from such E. Not used.
electronic files will be at the user's sole risk.
F. At any time, OWNER may request that
C. Copies of Documents that may be relied upon by ENGINEER, at OWNER's sole expense, provide additional
OWNER are limited to the printed copies(also known as hard insurance coverage, increased limits, or revised deductibles
copies) that are signed or sealed by the appropriate that are more protective than those specified in Exhibit G. If
professional. Files in electronic media format of text, data, so requested by OWNER, with the concurrence of
graphics, or of other types that are furnished by ENGINEER ENGINEER, and if commercially available, ENGINEER
to OWNER are only for convenience of OWNER. Any shall obtain and shall require its Consultants to obtain such
conclusion or information obtained or derived from such additional insurance coverage, different limits, or revised
electronic files will be at the user's sole risk. deductibles for such periods of time as requested by
OWNER, and Exhibit G will be supplemented to incorporate
D. Because data stored in electronic media format can these requirements.
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving 6.06 Termination
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party A.(Modified) The obligations hereunder may be
shall be deemed to have accepted the data thus transferred. terminated:
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period. ENGINEER. 1. For cause,
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER. a. (Modified) By either party upon 30 days'
written notice in the event of failure by the other
E. When transferring documents in electronic media party to perform in accordance with the terms hereof
format, ENGINEER makes no representations as to long-term through no fault of the terminating party;or
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating b. By ENGINEER upon seven days' written
systems, or computer hardware differing from those used by notice if ENGINEER is being requested by
ENGINEER at the beginning of this Project. OWNER to furnish or perform services contrary to
ENGINEER's responsibility as a licensed
F. (Modified) Any use of the Documents on any professional.
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases c. Notwithstanding the foregoing, this
ENGINEER from any liability associated solely with the Agreement will not terminate as a result of such
reuse of the Documents. substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
G. If there is a discrepancy between the electronic files to correct its failure to perform and proceeds
and the hard copies,the hard copies govern. diligently to cure such failure within no more than
30 days of receipt thereof;provided,however,that if
H. Any verification or adaptation of the Documents for and to the extent such substantial failure cannot be
extensions of the Project or for any other project will entitle reasonably cured within such 30 day period, and if
ENGINEER to fiu-ther compensation at rates to be agreed such party has diligently attempted to cure the same
upon by OWNER and ENGINEER. and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
6.05 Insurance up to,but in no case more than 60 days after the date
of receipt of the notice.
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G,"Insurance." 2. For convenience by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
B. Not used.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
Radioactive Material located at or near the Site, including
6.07 Controlling Law type,quantity and location.
A. This Agreement is to be governed by the law of the C.(Modified) If a Hazardous Environmental
state in which the Project is located. Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
6.08 Successors,Assigns,and Beneficiaries business day of the same.
A. OWNER and ENGINEER each is hereby bound and D. It is acknowledged by both parties that
the partners, successors, executors, administrators and legal ENGINEER's scope of services does not include any services
representatives of OWNER and ENGINEER (and to the related to a Hazardous Environmental Condition. In the event
extent permitted by paragraph 6.08.B the assigns of OWNER ENGINEER or any other party encounters a Hazardous
and ENGINEER) are hereby bound to the other party to this Environmental Condition, ENGINEER may, at its option and
Agreement and to the partners, successors, executors, without liability for consequential or any other damages,
administrators and legal representatives (and said assigns) of suspend performance of services on the portion of the Project
such other party, in respect of all covenants, agreements and affected thereby until OWNER: (i) retains appropriate
obligations of this Agreement. specialist consultant(s) or contractor(s) to identify and, as
appropriate, abate, remediate, or remove the Hazardous
B. Neither OWNER nor ENGINEER may assign, Environmental Condition; and(ii) warrants that the Site is in
sublet, or transfer any rights under or interest (including, but full compliance with applicable Laws and Regulations.
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other, E. OWNER acknowledges that ENGINEER is
except to the extent that any assignment, subletting, or performing professional services for OWNER and that
transfer is mandated or restricted by law. Unless specifically ENGINEER*is not and shall not be required to become an
stated to the contrary in any written consent to an assignment, "arranger," "operator," "generator," or "transporter" of
no assignment will release or discharge the assignor from any hazardous substances, as defined in the Comprehensive
duty or responsibility under this Agreement. Environmental Response,Compensation,and Liability Act of
1990(CERCLA),which are or may be encountered at or near
C. Unless expressly provided otherwise in this the Site in connection with ENGINEER's activities under this
Agreement: Agreement.
1. Nothing in this Agreement shall be construed to F. If ENGINEER's services under this Agreement
create, impose, or give rise to any duty owed by cannot be performed because of a Hazardous Environmental
OWNER or ENGINEER to any Contractor, Contractor's Condition, the existence of the condition shall justify
subcontractor, supplier, other individual or entity, or to ENGINEER's terminating this Agreement for cause on 30
any surety for or employee of any of them. days'notice.
2. All duties and responsibilities undertaken 6.11 Allocation of Risks
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not A. (Modified) Indemnification. See Exhibit K.
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. 6.12 Notices
6.09 Not Used. A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
6.10 Hazardous Environmental Condition party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
A. OWNER represents to ENGINEER that to the best or by a commercial courier service. Additionally, notices
of its knowledge a Hazardous Environmental Condition does may be given via facsimile or by electronic mail if such notice
not exist. is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
B.(Modified) OWNER has disclosed to the best of upon the date of receipt.
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
6.13 Survival requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
A. (Modified) All express representations, supporting documentation as is required by the Contract
indemnifications, and limitations of liability included in this Documents.
Agreement will survive its completion or termination for any
reason. 5. Asbestos--Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
6.14 Severability fibers into the air above current action levels established
by the United States Occupational Safety and Health
A. Any provision or part of the Agreement held to be Administration.
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue 6. Basic Services--The services to be performed
to be valid and binding upon OWNER and ENGINEER,who for or furnished to OWNER by ENGINEER in
agree that the Agreement shall be reformed to replace such accordance with Exhibit A,Part 1,of this Agreement.
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the 7. Bid--The offer or proposal of the bidder
intention of the stricken provision. submitted on the prescribed form setting forth the prices
for the Work to be performed.
6.15 Waiver
8. Bidding Documents--The advertisement or
A. Non-enforcement of any provision by either party invitation to Bid, instructions to bidders, the Bid form
shall not constitute a waiver of that provision, nor shall it and attachments, the Bid bond, if any, the proposed
affect the enforceability of that provision or of the remainder Contract Documents,and all Addenda,if any.
of this Agreement.
9. Change Order--A document recommended by
6.16 Headings ENGINEER, which is signed by Contractor and
OWNER to authorize an addition,deletion or revision in
A. The headings used in this Agreement are for general the Work, or an adjustment in the Contract Price or the
reference only and do not have special significance. Contract Times, issued on or after the Effective Date of
the Construction Agreement.
ARTICLE 7- DEFINITIONS
10. Construction Agreement--The written
instrument which is evidence of the agreement,contained
7.01 Defined Terms in the Contract Documents, between OWNER and
Contractor covering the Work.
A. Wherever used in this Agreement (including the
Exhibits hereto)and printed with initial or all capital letters, 11. Construction Contract--The entire and
the terms listed below have the meanings indicated, which integrated written agreement between the OWNER and
are applicable to both the singular and plural thereof: Contractor concerning the Work.
1. Addenda--Written or graphic instruments issued 12. Construction Cost--The cost to OWNER of
prior to the opening of Bids which clarify, correct, or those portions of the entire Project designed or specified
change the Bidding Documents. by ENGINEER. Construction Cost does not include
costs of services of ENGINEER or other design
2. Additional Services--The services to be professionals and consultants,cost of land,rights-of-way,
performed for or furnished to OWNER by ENGINEER or compensation for damages to properties,or OWNER's
in accordance with Exhibit A,Part 2 of this Agreement. costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges
3. Agreement--This"Standard Form of Agreement incurred in connection with the Project, or the cost of
between OWNER and ENGINEER for Professional other services to be provided by others to OWNER
Services," including those Exhibits listed in Article 8 pursuant to Exhibit B of this Agreement. Construction
hereof. Cost is one of the items comprising Total Project Costs.
4. Application for Payment--The form acceptable 13. (Modified) Contract Documents--Documents
to ENGINEER which is to be used by Contractor in that establish the rights and obligations of the parties
engaged in construction and include the Construction
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
Agreement between OWNER and Contractor and all 20. Drawings--That part of the Contract Documents
documents referenced therein,Addenda(which pertain to prepared or approved by ENGINEER which graphically
the Contract Documents), Contractor's Bid (including shows the scope, extent, and character of the Work to be
documentation accompanying the Bid and any post-Bid performed by Contractor. Shop Drawings are not
documentation submitted prior to the notice of award) Drawings as so defined.
when attached as an exhibit to the Construction
Agreement, the notice to proceed, the bonds, appropriate 21. Effective Date of the Construction Agreement--
certifications, insurance documents the General The date indicated in the Construction Agreement on
Conditions, the Supplementary Conditions, the which it becomes effective, but if no such date is
Specifications and the Drawings as the same are more indicated, it means the date on which the Construction
specifically identified in the Construction Agreement, Agreement is signed and delivered by the last of the two
together with all Written Amendments, Change Orders, parties to sign and deliver.
Work Change Directives, Field Orders, and
professional's written interpretations and clarifications 22. Effective Date of the Agreement--The date
issued on or after the Effective Date of the Construction indicated in this Agreement on which it becomes
Agreement. Approved Shop Drawings and the reports effective, but if no such date is indicated, it means the
and drawings of subsurface and physical conditions are date on which the Agreement is signed and delivered by
not Contract Documents. the last of the two parties to sign and deliver.
14. Contract Price--The moneys payable by 23. Consultants--Individuals or entities having a
OWNER to Contractor for completion of the Work in contract with ENGINEER to furnish services with
accordance with the Contract Documents and as stated in respect to this Project as ENGINEER's independent
the Construction Agreement. professional associates, consultants, subcontractors, or
vendors.The term ENGINEER includes its Consultants.
15. Contract Times--The numbers of days or the
dates stated in the Construction Agreement to: 24. Field Order--A written order issued by
(1)achieve Final Completion, and(ii)complete the Work ENGINEER which directs minor changes in the Work
so that it is ready for final payment as evidenced by but which does not involve a change in the Contract
ENGINEER's written recommendation of final payment. Price or the Contract Times.
16. Contractor--An individual or entity with whom 25. Final Completion shall mean that all work has
OWNER enters into a Construction Agreement. been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
17. Correction Period--The time after Final subcontractors have been made, all documentation and
Completion during which Contractor must correct, at no warranties have been submitted, all closeout documents
cost to OWNER,any Defective Work,normally one year have been executed and approved by the OWNER, and
after the date of Final Completion or such longer period the Project has been finally accepted by the OWNER.
of time as may be prescribed by Laws or Regulations or
by the terms of any applicable special guarantee or 26. General Conditions-That part of the Contract
specific provision of the Contract Documents. Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
18. Defective--An adjective which,when modifying furnished by Contractor with respect to the Project.
the word Work, refers to Work that is unsatisfactory,
faulty, or deficient, in that it does not conform to the 27. Hazardous Environmental Condition--The
Contract Documents, or does not meet the requirements presence at the Site of Asbestos, PCB's, Petroleum,
of any inspection, reference standard, test, or approval Hazardous Waste, or Radioactive Materials in such
referred to in the Contract Documents, or has been quantities or circumstances that may present a substantial
damaged prior to ENGINEER's recommendation of final danger to persons or property exposed thereto in
payment. connection with the Work.
19. Documents--Data, reports, Drawings, 28. Hazardous Waste--The term Hazardous Waste
Specifications,Record Drawings, and other deliverables, shall have the meaning provided in Section 1004 of the
whether in printed or electronic media format, provided Solid Waste Disposal Act (42 USC Section 6903) as
or furnished in appropriate phases by ENGINEER to amended from time to time.
OWNER pursuant to this Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
29. Laws and Regulations; Laws or Regulations-- and submitted by Contractor to ENGINEER to illustrate some
Any and all applicable laws, rules, regulations, portion of the Work.
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts 38. Site--Lands or areas indicated in the Contract
having jurisdiction. Documents as being furnished by OWNER upon which the
Work is to be performed, rights-of-way and easements for
30. PCB's--Polychlorinated biphenyls. access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
31. Petroleum--Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions 39. Specifications--That part of the Contract Documents
of temperature and pressure (60 degrees Fahrenheit and consisting of written technical descriptions of materials,
14.7 pounds per square inch absolute), such as oil, equipment, systems, standards, and workmanship as applied
petroleum, fuel oil, oil sludge, oil refuse, gasoline, to the Work and certain administrative details applicable
kerosene,and oil mixed with other non-Hazardous Waste thereto.
and crude oils.
40. Substantial Completion--The time at which the
32. Radioactive Materials--Source, special nuclear, Work(or a specified part thereof)has progressed to the point
or byproduct material as defined by the Atomic Energy where, in the opinion of ENGINEER, the Work (or a
Act of 1954 (42 USC Section 2011 et seq.) as amended specified part thereof) is sufficiently complete, in accordance
from time to time. with the Contract Documents,so that the Work(or a specified
part thereof) can be utilized for the purposes for which it is
33. Record Drawings--The Drawings as issued for intended. The terms "substantially complete" and
construction on which the ENGINEER,upon completion "substantially completed"as applied to all or part of the Work
of the Work, has shown changes due to Addenda or refer to Substantial Completion thereof.
Change Orders and other information which ENGINEER
considers significant based on record documents 41. Supplementary Conditions--That part of the Contract
furnished by Contractor to ENGINEER and which were Documents which amends or supplements the General
annotated by Contractor to show changes made during Conditions.
construction.
42. (Modified) Total Project Costs--The sum of the
34. Reimbursable Expenses--The expenses incurred Construction Cost, allowances for contingencies, the total
directly by ENGINEER in connection with the costs of services of ENGINEER or other design professionals
performing or furnishing of Basic and Additional and consultants,cost of land,rights-of-way,compensation for
Services for the Project for which OWNER shall pay damages to properties,OWNER's costs for legal, accounting,
ENGINEER as indicated in Exhibit C. insurance counseling or auditing services, interest and
financing charges incurred in connection with the Project,and
35. Resident Project Representative--The the cost of other services to be provided by others to OWNER
authorized representative of ENGINEER, if any, pursuant to Exhibit B of this Agreement.
assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project Representative 43. Work--The entire completed construction or the
will be ENGINEER's agent or employee and under various separately identifiable parts thereof required to be
ENGINEER's supervision. As used herein, the term provided under the Contract Documents with respect to this
Resident Project Representative includes any assistants Project. Work includes and is the result of performing or
of Resident Project Representative agreed to by furnishing labor, services, and documentation necessary to
OWNER. The duties and responsibilities of the Resident produce such construction and furnishing, installing, and
Project Representative are as set forth in Exhibit D. incorporating all materials and all equipment into such
construction,all as required by the Contract Documents.
36. Samples--Physical examples of materials,
equipment, or workmanship that are representative of 44. Work Change Directive--A written directive to
some portion of the Work and which establish the Contractor issued on or after the Effective Date of the
standards by which such portion of the Work will be Construction Agreement and signed by OWNER upon
judged. recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing
37. Shop Drawings--All drawings, diagrams, or unforeseen subsurface or physical conditions under which
illustrations, schedules, and other data or information which the Work is to be performed or to emergencies. A Work
are specifically prepared or assembled by or for Contractor Change Directive will not change the Contract Price or the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
Contract Times but is evidence that the parties expect that the ENGINEER and supersedes all prior written or oral
change directed or documented by a Work Change Directive understandings. This Agreement may only be amended,
will be incorporated in a subsequently issued Change Order supplemented, modified, or canceled by a duly executed
following negotiations by the parties as to its effect,if any, on written instrument. This Agreement along with the exhibits
the Contract Price or Contract Times. shall be read and construed as the same Agreement.
45. Written Amendment--A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non-architectural or non-technical
rather than strictly construction-related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
eight(8)pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two(2)pages.
C. Exhibit C, "Payments to ENGINEER for Services
and Reimbursable Expenses,"consisting of two(2)pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative,"is not used.
E. Exhibit E, "Notice of Acceptability of Work,"is not
used.
F. Exhibit F."Construction Cost Limit,"is not used.
G. Exhibit G,"Insurance,"consisting of two(2)pages.
H. Exhibit H,"Dispute Resolution,"is not used.
I. Exhibit I,"Allocation of Risks,"is not used.
J. Exhibit J,"Special Provisions"is not used.
K. (Added) Exhibit K. "Indemnification" consisting of
two(2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 12
IN WITNESS WHEREOF,the parties hereto have
executed this Agreement,the Effective Date of which is
indicated on page 1.
OWNER: CITY OF AY EN ER: HDR E RING,INC.
GARRISON C.BRUMBACK
Printed Name �. v► l _ s
Title: Ci nager Title 57✓• ! e l e-s / t,% }—
Date Signed: March 26, 2010 Date Signed /��'Z� ( C)
Address for giving notices: Address for giving notices:
P.O.BOX 424 4635 SOUTHWEST FREEWAY, SUITE 1000
BAYTOWN,TEXAS 77422-0424 HOUSTON,TX 77027-7139
Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A):
Pete Lester Name:David W.Kasper,P.E.
Title:Acting Director of Engineering Title: Vice President
Phone Number: (281)420-6549 Phone Number:(713)462-3242
Facsimile Number: (281)420-6586 Facsimile Number:(713)462-3262
E-Mail Address: pete.lester@baytown.org E-Mail Address: dkasper@claunchmiller.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 8 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated 3/26/2010
Ini '
OWNER
ENGINEER A5��_
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 Preliminary Engineering Phase—Not used
A1.02 Final Design Phase
A. Upon written authorization from OWNER,ENGINEER shall:
1. (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings
indicating the scope,relationships, forms size and appearance of the Project by means of plans,profiles,
construction details and specifications together with the extent and character of the Work to be performed
and fuunished by Contractor, including the quality levels for major materials. Specifications will be
prepared, where appropriate, in conformance with the 16-division format of the Construction
Specifications Institute or other format agreed to in writing by OWNER and ENGINEER.
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities,including,but
not limited to,those required approvals the Texas Commission on Environmental Quality.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costs known to ENGINEER,with each major component separately itemized,including the
following, which will be separately itemized: opinion of probable Construction Cost, allowances for
contingencies and for the estimated total costs of design, professional, and related services provided by
ENGINEER and, on the basis of information furnished by OWNER, allowances for other items and
services included within the definition of Total Project Costs
4. Perform or provide the following additional Final Design Phase tasks or deliverables:
a. Prepare Contract Documents including plans, specifications, and bidding documents associated
with the design of the elevated water storage tank including: site drainage, plan sheets, site
utilities, elevated water storage tank, electrical and controls, mechanical, and structural
components based on the work performed in the Preliminary Engineering Phase, including
changes obtained from the review process of the preliminary engineering report. Plans to include
civil,mechanical,and electrical components for the facilities.
b. Perform electrical design for the Project, which shall include but not be limited to, the following
items:
➢ Electrical service equipment,
➢ Tank interior lighting,
➢ FAA lighting design,
➢ Interior and tank top receptacles,and
➢ SCADA system.
Page 1 of 8 pages
(Exhibit A—Engineer's Services)
c. Prepare a site-specific Storm Water Pollution Prevention Plan(SWPPP)for the Project.
d. Employ a subconsultant to perform the following geotechnical engineering services:
➢ Perform one (1) soil boring to a maximum depth of eighty feet at the proposed water tank
site.
➢ Perform three (3) soil borings to a maximum depth of sixty feet each at the perimeter of the
proposed water tank site.
➢ The subsurface soils will be characterized in accordance with their physical and engineering
characteristics by means of Atterberg Limits,moisture content, density,strengths,and percent
passing the#200 sieve analysis,as appropriate.
➢ A description of the site and general soil and geologic conditions encountered will be
described and assessed.
➢ The results will be summarized in a report prepared by a Licensed Engineer.
e. Employ a subconsultant to perform the following surveying services:
➢ Topographic survey of the proposed site(2.819 acres)and edge of pond on adjacent property.
➢ Establish two(2)on-site control points.
4. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any
time the ENGINEER's estimate of the probable Construction Cost or Total Project Costs exceed the
OWNER's budget.
5. Provide three (3) full-size sets of 60% documents for the OWNER's review and comment within ninety
(90)calendar days of authorization to begin services and review it with OWNER.
6. Revise the 60%documents in response to OWNER's and other parties' comments,as appropriate.
7. Provide six(6)full-size sets of 90%documents for the OA NER's review and comment within thirty(30)
calendar days of receiving OWNER's comments on the 60%documents.
8. Revise the documents in response to OWNER's and other parties' comments,as appropriate.
9. Provide three full-size sets of 100% Bidding Documents for the OWNER's review and comment within
thirty(30)calendar days of after receiving OWNER's comments on the 90%documents.
10. Revise the documents in response to OWNER's and other parties' comments,as appropriate, and furnish
fourteen (14) final bound copies, one (1) unbound copy, and one (1) reproducible mylar of the revised
100% Bidding Documents and a revised opinion of probable Construction Cost to the OWNER within
ten(10)days after completion of reviewing 100%Bidding Documents with OWNER.
B. (Modified) ENGINEER's services under the Final Design Phase will be considered complete on the date
when the final copies of the revised documents have been delivered to and accepted by OWNER.
A 1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the Design Development Phase, and upon written authorization by
OWNER to proceed,ENGINEER shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work.
2. Issue Addenda as appropriate to clarify,correct,or change the Bidding Documents.
Page 2 of 8 pages
(Exhibit A—Engineer's Services)
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. (Modified) Attend the Mandatory Pre-Bid Conference, prepare Bid tabulation sheets, assemble contract
documents,assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work.
5. (Added) Assist in connection with Bid protests, rebidding, or re-negotiating contracts for construction,
materials,equipment,or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER,ENGINEER shall:
1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to
Contractor will be issued through ENGINEER,who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an
independent testing laboratory to perform the services identified in paragraph B2.01,if any.
3. Pre-Construction Conference. Participate in a Pre-Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate,establish baselines and benchmarks for locating the Work
which in ENGINEER's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified)Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests,and as ENGINEER and/or OWNER deems
necessary, in order to observe as an experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by ENGINEER,and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and
the Contract Documents, but rather are to be limited to spot checking, selective sampling, and
similar methods of general observation of the Work based on ENGINEER's exercise of
professional judgment as assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations, ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER
shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative,if any,at the Site,will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
Page 3 of 8 pages
(Exhibit A—Engineer's Services)
professional, to provide for OWNER a greater degree of confidence that the completed Work
will substantially conform to the Contract Documents and that the integrity of the design concept
of the completed Project as a functioning whole as indicated in the Contract Documents has
been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as
a result of such observations of Contractor's work in progress, supervise,direct, or have control
over Contractor's work, nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of construction selected by Contractor,
for safety precautions and programs incident to Contractor's work, or for any failure of
Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
performing the Work. Accordingly, ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its
work in accordance with the Contract Documents.
c. (Added) Employ a subconsultant to provide additional periodic construction observation
services to increase site presence during the Construction Phase. The additional period
construction observation services shall be above and beyond the normal construction
administration services required of the Engineering in subsection (a) of this section. These
services shall include more extensive on-site observations of work in progress to provide further
protection for the OWENER against defects and deficiencies in the work of the Contractors and
shall include at a minimum the following:
➢ Steel Erection and Welding
• Preconstruction meeting with foreman,check welder's certification papers;
• Check dimensions of steel plates for correct thickness;
• Check edge preparation and bevels of plates;
• Check surfaces for irregularities such as laminations and cracks;
• Check joint geometry and fit-up during erection;
• Observe proper welding procedures during erection;
• Check back gouging or back grinding is performed;
• Check all accessories for correct size and location;
• Select X-ray locations and observe film placement;
• Check all film for discontinuities and incomplete joint penetration;
• Check structure for removal of erection lugs and grinding of burs;and
• Check grinding of steel lugs and properly prepared for painting.
➢ Protective Coating Application
• Pre-con meeting with foreman;
• Check shop blasting for profile and priming for thickness;
• Check coating products to verify they meet specifications;
• Determine thickness and condition of shop-applied prime coats;
• Check blast material and anchor profiles of steel;
• Check mixing and application of each of the coating products;
• Check dry film thickness after each coat is cured and before next coat is applied;and
• Monitor testing of immersed areas for pin-holes or holidays.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
7. Clarifications and Interpretations;Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
Page 4 of 8 pages
(Exhibit A—Engineer's Services)
the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. Such reviews and approvals or other action will not extend to means, methods,
techniques, sequences or procedures of construction or to safety precautions and programs incident
thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10. Substitutes and "or-equal." Evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor,but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENGINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. (Modified)Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and
progress of Contractor's work. In rendering such decisions,ENGINEER shall be fair and not show
partiality to OWNER or Contractor.
13. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWNER, based on such observations and review, that, to the best of ENGINEER's
knowledge,information and belief, Contractor's work has progressed to the point indicated,the
quality of such work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in the recommendation),and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's
responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's
recommendations of payment will include final determinations of quantities and classifications
of Contractor's work (subject to any subsequent adjustments allowed by the Contract
Documents). The responsibilities of ENGINEER contained in paragraph A 1.04.A.5.a are
expressly subject to the limitations set forth in paragraph A 1.04.A.5.b and other express or
general limitations in this Agreement and elsewhere.
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as
Page 5 of 8 pages
(Exhibit A—Engineer's Services)
it is performed and furnished have been exhaustive, extended to every aspect of Contractor's
work in progress, or involved detailed inspections of the Work beyond the responsibilities
specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither
ENGINEER's review of Contractor's work for the purposes of recommending payments nor
ENGINEER's recommendation of any payment including final payment will impose on
ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for
the means, methods, techniques, sequences, or procedures of construction or safety precautions
or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable
to Contractor's furnishing and performing the Work. It will also not impose responsibility on
ENGINEER to make any examination to ascertain how or for what purposes Contractor has
used the moneys paid on account of the Contract Price, or to determine that title to any portion
of the work in progress, materials, or equipment has passed to OWNER free and clear of any
liens,claims, security interests, or encumbrances, or that there may not be other matters at issue
between OWNER and Contractor that might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (Modified)Receive bonds, certificates, or other evidence of insurance not previously submitted
and required by the Contract Documents, certificates of inspection, tests and approvals, Shop
Drawings, Samples and other data approved as provided under paragraph A 1.04.A.9, and the
annotated record documents which are to be assembled by Contractor in accordance with the
Contract Documents to obtain final payment. The extent of such ENGINEER's review will be
limited as provided in paragraph A 1.04.A.9.
b. ENGINEER shall transmit these documents to OWNER within ten (10) days of receipt of
documents from Contractor.
c. (Added) Preparing and furnishing to OWNER Record Drawings on reproducible mylar and in
adobe .pdf format showing appropriate record information based on Project annotated record
documents received from Contractor.
16. Inspection. Promptly after notice from Contractor that Contractor considers the entire Work ready for its
intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work
is finally complete. ENGINEER shall prepare a punch-lists as necessary for the Work to achieve final
completion.
17. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E(the"Notice of Acceptability of Work")that to
the best of ENGINEER's knowledge,information and belief and upon the exercise of ENGINEER'S due
diligence,the Work is acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to the
Contractor.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
furnish the Work in accordance with the Contract Documents.
PART 2--ADDITIONAL SERVICES
A2.01 Additional Services Requiring 0WNER's Authorization in Advance
Page 6 of 8 pages
(Exhibit A—Engineer's Services)
A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of
the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement.
1. (Modified) Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements; review and evaluation of the
effects on the design requirements for the Project of any such statements and documents prepared by
others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated
environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not
otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction
to approve all phases of the PROJECT designed or specified by ENGINEER.
2. (Modified)Services resulting from significant changes in the scope,extent,or character of the portions of
the Project designed or specified by ENGINEER or its design requirements including,but not limited to,
changes in size, OWNER's schedule, or character of construction; and revising previously accepted
studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by
changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement.
3. (Modified) Services resulting from OWNER's request to evaluate additional Phase alternative solutions
beyond those identified in paragraph A 1.01.A.4.
4. Services required as a result of OWNER's providing incomplete or incorrect Project information with
respect to Exhibit B; provided, such information was to be relied upon by ENGINEER pursuant to
Section 6.01.EA of the Agreement.
5. Providing renderings or models for OWNER's use.
6. Undertaking investigations and studies including,but not limited to, detailed consideration of operations,
maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic
evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating
processes available for licensing, and assisting OWNER in obtaining process licensing;detailed quantity
surveys of materials, equipment, and labor; and audits or inventories required in connection with
construction performed by OWNER.
7. Furnishing services of ENGINEER's Consultants for other than Basic Services.
8. Services attributable to more prime construction contracts than specified in paragraph A 1.03.C.
9. Services during out-of-area travel required of ENGINEER other than for visits to the Site or OWNER's
office.
10. Preparing for, coordinating with, participating in and responding to structured independent review
processes, including, but not limited to, construction management, cost estimating, project peer review,
value architectural, and constructibility review requested by OWNER; and performing or furnishing
services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a
result of such review processes.
11. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current
Laws and Regulations.
12. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project if ENGINEER is not a party to the
same).
13. Providing more extensive services required to enable ENGINEER to issue notices or certifications
requested by OWNER under paragraph 6.01.G of the Agreement.
Page 7 of 8 pages
(Exhibit A—Engineer's Services)
14.Other services performed or fiirnished by ENGINEER not otherwise provided for in this Agreement.
15. Property descriptions.
16. (Modified)Property,easement,right-of-way,and other special surveys or data,including
establishing relevant reference points.
17. (Added) Environmental assessments,audits,investigations and impact statements,and other relevant
environmental or cultural studies as to the Project,the Site,and adjacent areas.
18. (Added) Additional services during construction made necessary by (1) emergencies or acts of God
endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged
by fire or other cause during construction, or(4) acceleration of the progress schedule involving services
beyond normal working hours.
PART 2—ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER-s Authorization in Advance
Not Included
A2.02 Required Additional Services
Not Included
Page 8 of 8 pages
(Exhibit A--Engineer's Services)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated 3/26/2010
Initial:
O R
ENGINEE
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. However,nothing herein shall require the City to
tender such information in any particular format.
C. (Modified) Following ENGINEER's assessment of initially-available Project information and data and upon
ENGINEER's written request,fiunish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1. (Not Used).
2. (Not Used).
3. (Not Used).
4. (Not Used).
5. (Not Used).
6. (Not Used).
D. (Not Used).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public property as
required for ENGINEER to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
H. (Not Used).
Page 1 of 2 pages
(Exhibit B-OWNER's Responsibilities)
I. (Not Used).
J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating,project
peer review,value architectural,and constructability review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. (Modified)If OWNER designates a construction manager or an individual or entity other than, or in addition
to, ENGINEER to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties,responsibilities,and authority of ENGINEER.
M. Attend the pre-bid conference,bid opening,pre-construction conferences,construction progress and other job
related meetings,and Substantial Completion and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNER's on-site representative to ENGINEER
during construction phase.
Page 2 of 2 pages
(Exhibit B-OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated 3/26/2010
Initial:
OWNS
(��C
ENGINEER
-4k—
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and Appropriate amounts have been incorporated in
supplemented to include the following agreement of the cost not to exceed to account for labor,
the parties: overhead,profit,and Reimbursable Expenses.
ARTICLE 4--PAYMENTS TO THE ENGINEER 4. Not Used.
C4.01 For Basic Services Having A Determined 5. The portion of the amount billed for
Scope —Cost not to Exceed Method of ENGINEER's services will be based upon total
Payment services actually completed during the billing
period.
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
C4.02 For Basic Services Having An Undetermined
1. (Modified) A cost not to exceed Scope -- Direct Labor Costs Times a Factor
amount of $102,490.00, based upon the rate Method of Payment
schedule, which is attached as Appendix 1 of
Exhibit C and incorporated herein for all intents A. (Not Used).
and purposes. The cost not to exceed does not
include those Engineer's Consultant's charges as C4.03 For Additional Services
provided below in this Article 4, Subparagraph
C4.05. Additionally, the cost not to exceed will A. OWNER shall pay ENGINEER for
be distributed at the completion of each phase in Additional Services as follows:
an amount not exceeding the following for each
task: 1. General. For services of ENGINEER's
employees engaged directly on the Project
1. Design Phase pursuant to paragraph A2.01 or A2.02 of Exhibit
a. Civil&Mechanical..............$ 60,680.00 A of the Agreement, except for services as a
b. Electrical&SCADA ..........$ 12,780.00 consultant or witness under paragraph
C. SWPPP................................$ 1,600.00 A2.Ol.A.13, an amount equal to ENGINEER's
2. Bidding/Negotiating Phase............$2,330.00 Direct Labor Costs based upon the rate schedule,
3. Construction Phase......................$25,100.00 which is attached as Appendix 1 of Exhibit C
and incorporated herein for all intents and
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 shall not exceed $0.00
herein to be consistent with services actually without the prior written consent of the Owner.
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by 2. (Deleted).
the OWNER.
C4.04 For Reimbursable Expenses
3. The cost not to exceed includes
compensation for ENGINEER's services and A. (Modified) OWNER shall pay ENGINEER
services of its Consultants (with the exception of for Reimbursable Expenses at the rate set forth in
those outlined in paragraph C4.05), if any. Appendix 2 of this Exhibit C. Before the OWNER
Page 1 of 2 pages
(Exhibit C -Basic Services With Determined Scope--Cost not to exceed Method)
shall be liable for any reimbursable expenses, the
ENGINEER must obtain prior written approval of the 4.07 Rate Schedule
OWNER of any expense that exceeds $1000.00 for
which the ENGINEER seeks reimbursement. A. (Modified) The Rate Schedule includes
Reimbursable Expenses shall not exceed the the cost of customary and statutory benefits
following: including, but not limited to, social security
contributions, unemployment, excise and payroll
a. Final Design Phase........................$ 32000.00 taxes, workers' compensation, health and retirement
b. Bid Phase............ .. .....$ 2,000.00 benefits, bonuses, sick leave, vacation, and holiday
c. Construction Phase.......................$ 1,650.00 pay applicable thereto; the cost of general and
administrative overhead, which includes salaries and
B. (Modified) Reimbursable Expenses include wages of principals and employees engaged in
the following categories: mileage,parking tolls, long business operations not directly chargeable to
distance, reproduction of Drawings, Specifications, projects, plus non-Project operating costs, including
Bidding Documents,and similar Project-related items but not limited to,business taxes, legal,rent,utilities,
in addition to those required under Exhibit A, and, if office supplies, insurance, and other operating costs;
authorized in advance by OWNER. plus operating margin or profit.
C. The amounts payable to ENGINEER for B. External Reimbursable Expenses and
Reimbursable Expenses will be the Project-related ENGINEER's Consultant's Fees include
internal expenses actually incurred or allocated by ENGINEER's overhead and profit associated with
ENGINEER,plus all invoiced external Reimbursable ENGINEER's responsibility for the administration of
Expenses allocable to the Project, the latter such services and costs.
multiplied by a Factor of(1.10)to the extent noted in
Appendix 2 of this Exhibit C. C4.08 Other Provisions Concerning Payment
D. Not Used. A. Progress Payments. The portion of the
amounts billed for ENGINEER's services which are
E. (Added) The OWNER must approve all identified in paragraphs C4.01 and C4.03, will be
travel expenses before the same are incurred. If such based on the Rate Schedule for the cumulative hours
approval is not obtained, the OWNER shall not be charged to the Project during the billing period by all
liable for such travel expenses. of ENGINEER's employees, plus Reimbursable
Expenses and ENGINEER's Consultant's charges, if
C4.05 For ENGINEER's Consultant's Charges any.
A. (Modified) Whenever compensation to B. If ENGINEER, at any time during the term
ENGINEER herein is stated to include charges of of this agreement, incurs a debt, as the word is
ENGINEER's Consultants,those charges shall be the defined in section 2-662 of the Code of Ordinances
amounts billed by ENGINEER's Consultants to of the City of Baytown, it shall immediately notify
ENGINEER times a Factor of 1,_1. The consultant the OWNER's Director of Finance in writing. if the
charges shall not exceed the following amounts OWNER's Director of Finance becomes aware that
specified for each portion of the Project. The charges the ENGINEER has incurred a debt, the OWNER's
include the factor,and are as follows: Director of Finance shall immediately notify the
ENGINEER in writing. If the ENGINEER does not
Geotechnical......................................$ 16,880.00 pay the debt within 30 days of either such
Topographic Surveying.....................$ 4,070.00 notification, the OWNER's Director of Finance may
Additional Observation Services........$163500.00 deduct funds in an amount equal to the debt from any
payments owed to the ENGINEER under this
C4.06 Direct Labor Costs agreement, and the ENGINEER waives any recourse
therefor.
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).
Page 2 of 2 pages
(Exhibit C-All Other Services/Charges--Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C
RATE SCHEDULE
Employee Classification BillinLy Rate
Senior Project Manager..................................................................................... $211.99/HR
SeniorDesigner................................................................................................. $144.01/HR
CARDDesigner................................................................................................ $ 89.50/HR
ConstructionManager....................................................................................... $144.01/HR
ConstructionClerk............................................................................................ $ 71.20/HR
Clerical.............................................................................................................. $ 52.90/HR
Page 1 of 1 pages
(Appendix 1 to Exhibit C Rate Schedule)
APPENDIX 2 OF EXHIBIT C
REIMBURSEMENT OF COSTS
REIMBURSABLE EXPENSES
Reasonable Out of Baytown/Houston Area Travel Expenses
(Air,Hotel,Rental,etc.)..............................................................................................................@ Cost
Mileage(Standard Car or Truck)....................................................................................IRS Approved Rate
r
Page 1 of 1 pages
(Appendix 2 to Exhibit C Reimbursement of Costs)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated 3/26/2010
Initia
O=ER (/
EN ER
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 architects,engineers and/or design companies.
Page 1 of 2 Pages
(Exhibit G-Insurance)
b. Claims-made form is acceptable.
c. Coverage will be in force for three(3)years after project is completed.
Upon execution of this contract, ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail,return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of A:VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E&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 furnished to City of Baytown's representative. Certificates of insurance
showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to
execution of this agreement.
f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to City of Baytown's representative.
Page 2 of 2 pages
(Exhibit G-Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated ij 9 h/2 o i•Q
Initial:
O ER
ENGINEER ZA
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND
EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER") FROM
AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES,
CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY HIND,
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 TO THE EXTENT ARISING OUT OF OR IN
CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL
TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE
TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
ENGINEER OR THE ENGINEER'S AGENT, CONSULTANT UNDER
CONTRACT, OR ANOTHER ENTITY OVER WHICH THE ENGINEER
EXERCISES CONTROL (COLLECTIVELY ENGINEER'S PARTIES).
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 ENGINEER'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT
OR SOLE NEGLIGENCE AS WELL AS THE ENGINEER'S PARTIES'
INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT. 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 ANY PERSON OTHER THAN THE
ENGINEER'S PARTIES. IN THE EVENT THAT ANY ACTION OR
PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH
THE OWNER IS INDEMNIFIED, ENGINEER FURTHER AGREES AND
COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY
LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE
Page I of 2 Pages
(Exhibit K-Indemnification)
INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE
TERMINATION AND/OR EXPIRATION OF THIS AGREEMENT.
By this Agreement the Owner does not consent to litigation or suit, and the owner hereby
expressly revokes any consent to litigation that it may have granted by the terms of this
Contract or any other contract or agreement, any charter or applicable state law.
ENGINEER assumes full responsibility for its work performed hereunder and hereby
releases, relinquishes and discharges OWNER, its officers, agents, and employees from all
claims, demands, and causes of action of every kind and character for any injury to or
death of any person and/or any loss of or damage to any property that is caused by or
alleged to be caused by, arising out of, or in connection with ENGINEER's work to be
performed hereunder. This release shall apply with respect to ENGINEER's work
regardless of whether said claims, demands, and causes of action are covered in whole or in
part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede any
apportionment of liability or release of liability contained elsewhere in the Contract
Documents.
Page 2 of 2 Pages
(Exhibit K-Indemnification)