Ordinance No. 11,357ORINNAWE 140, 11,357
AN ORDINANCIZ CMI '.I.. W CITY COUNCIL OFTI-11", CITY OFBAYTOWNJEXAS,
AU"I"IfORIZIN(i AND DIRL',CTING-11IF CATY' NIANA(JER TO FXE.(AjTL AND
THE CITY' CLERK 11) ATTEmr TU THE. PROH-iSSIONAL SFRVICI",S
AGREENIFNT WITH NVIANDROSE, LAND SF VICES, INC, FOR THL, I,-,N1 RGY
FICI FNCY AND C*()NSF,'RVA'F1ON 13LOCK GRANT (F�ECBG) SIDE'WALK
(;RANT I1IZ(,)JECT; AL 1`I PA)`N/IF,NT BY' TIE CITY OFBAN'TOWN IN
AN ANIOUNTNOTTO ONI, I TI-R)USAND
FIVE, NO: /100 DOLLARS ($124.525.00); MAKING
01111'R PROVISIONS Rl',I.A,rED IIIERETO; ANI') PROVIDIN(i FOR THE
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * � * * * * * * * *k " * * * *** * * * * * * * *v* * * ** ** * * * * * * *.a**
HE IT ORDAINED BY`TIH? OT AY COUNCIL OF THE CITY OF BAY`I`0AVN,TEXAS:
Scohn 1: Wmt the City Council of the Wy of' Baylomi, 'rexas, hereby authorizes and
directs the City Manager U) exectac and the Uy (Auk to auest to die Wasiomd Services Agreement
with Windrose Land Service, Inc.. Ar Me Encrgy L'J'ficiency and C,onservation, Block Grant (FF,CJ1G)
Sidewalk Grant llrqject, A copy of the agreement is mtachcd hereto, marked FxNWt "Al and nmde as
part hereof for call intents and purposes.
Scclion 2: That the City Council ofthe City of' Baytown authorizes payment to Windrose
[And Smices, Inc, in anamaunt not to exceed ONF'I FIVE
HUNDRET) 'IAVI,NTA'-I-IVE AND NO/100 DOLLARS (S124,525MO) Ar enghwcrhg mid surveysg,
services in accordmwe wRh Me agrownern, amhorked in Se0imi I lierebabove.
Section 3: That the Coy N/lanag
,er is hereby granted general authority (o approve as dccrease
or an inewase in coms by TVVI_'NTN'-FIVE 11 IOUSAND AND NO/100 DOLLARS ($25,000.0 0) or less,
pmvWcd dmt the arnomit amhmized in Section 2 hereof may not be increased by more than 1wenly-five
percent (2551).
INTRODU("ED, RLAD, and PASSED by We alhrmatNe wt
Baytown, this the 13'h day of'Nlay, 20 1 O
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APPROVI',I) AS TO FORNI:
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DONCARLOS, Ma
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the _ day of May, 2010 ( "Effective Date ").
Between
City of Baytown ( "OWNER ")
and
Windrose Land Services, Inc. ("CONSULTANT ")
OWNER intends to contract to provide professional engineering design and consulting services related to the
EECBG Sidewalk Project, being approximately 14,725 LF along Massey Tompkins Road and 1,680 LF along
Pruett Road ( "Project "),
OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I of 12
TABLE OF CONTENTS Pale
ARTICLE I -SERVICES OF CONSULTANT .................................................................................. ............................... 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 CONSULTANT ................................................................................ ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT ...... ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................ ............................... 3
ARTICLE 5 - OPINIONS OF COST ...........................
5.01 Opinions of Probable Construction Cost
5.02 Designing to Construction Cost Limit....
5.03 Opinions of Total Project Costs ..............
.................................................. ............................... 4
.................................................. ............................... 4
.................................................. ............................... 4
.................................................. ............................... 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 .............................................................................................................. ............................... 6
6.05Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law ................................................................................................................. ............................... 7
6.08 Successors. Assigns. and Bencficiaries ............................................................................. ............................... 7
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................ ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Scvcmbility ......................................................................................................................... ............................... 8
6.15 Waiver ................................................................................................................................ ............................... 8
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE 7 - DEFINITIONS .............................................................................................................. ............................... 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... 11
8.01 Exhibits Included .............................................................................................................. ............................... 11
8.02 Total Agreement ............................................................................................................... ...............................
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1- SERVICES OF CONSULTANT
1.01 Scope
A. CONSULTANT shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. (modified) Upon issuance of a notice to proceed by
the OWNER, CONSULTANT is authorized to begin Basic
Services as set forth in Exhibit A.
C. (Deleted).
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) CONSULTANT's services and
compensation under this Agreement have been agreed to for
the design of the Project together with other services specified
in Exhibit A. CONSULTANT's obligation to render services
hereunder will be for whatever period necessary for the final
completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted)
B. (Modified) If CONSULTANT's services are
delayed or suspended in whole or in part by OWNER.
CONSULTANT may be entitled to equitable adjustment of
rates and amounts of compensation provided for elsewhere in
this Agreement to reflect, reasonable costs incurred by
CONSULTANT in connection with, among other things,
such delay or suspension and reactivation and the fact that the
time for performance under this Agreement has been revised,
unless such delay or suspension is caused in whole or in part
by the CONSULTANT, its officers, agents, or employees. If
CONSULTANT causes or contributes to the delay or
suspension, CONSULTANT shall have no right to seek
additional compensation.
ARTICLE 4 - PAYMENTS TO CONSULTANT
4.01 Methods of Payment for Services and
Reimbursable Expenses of CONSULTANT
A. For Basic Services. OWNER shall pay
CONSULTANT for Basic Services performed or furnished
under Exhibit A, Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
CONSULTANT for Additional Services performed or
furnished under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Erpenras. In
addition to payments provided for in paragraphs 4.01.A and
4.01.11, OWNER shall pay CONSULTANT for Reimbursable
Expenses incurred by CONSULTANT and
CONSULTANT's Consultants as set forth in Exhibit C.
However, all expenses associated with meals and lodging
must be approved in writing by OWNER prior to
CONSULTANT incurring any expense associated therewith;
otherwise, the parties hereto agree and understand that
OWNER shall not be liable and CONSULTANT shall not
make a claim against OWNER for any such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or email
by CONSULTANT, unless otherwise agreed.
CONSULTANT shall supply detailed back -up information
along with each invoice in order for the OWNER to
effectively evaluate the fees and charges. The amount billed
in each invoice will be calculated us set forth in Exhibit C.
B. (Modified) Payment ofhivoices. Invoices are due
and payable within 30 days alter the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due CONSULTANT for services and expenses
within 30 days after receipt of CONSULTANT's invoice and
the required backup documentation therefor, the amounts due
CONSULTANT will accrue interest at the rate set forth in
Section 2251.025 of the Texas Government Code (or the
maximum rate of interest permitted by law, if less) after the
30th day. CONSULTANT may alter giving seven days'
written notice to OWNER suspend services under this
Agreement until CONSULTANT has been paid in full all
amounts due for services, expenses, and other related charges.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
However. it is expressly understood and agreed that
CONSULTANT will not charge any interest or penalty as set
forth herein on any portion of an invoice that is disputed
and/or withheld in accordance with paragraph 4.02 and that
CONSULTANT will not suspend services under the
agreement on account of a disputed invoice or on account of
monies withheld. All payments will be credited first to
principal and then to interest.
C. Disprtted lowaices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Purnrents Upon Temihitition. In the event of any
termination under section 6.06. CONSULTANT will be
entitled to invoice OWNER and will be paid in accordance
with Exhibit C for all services performed or furnished and all
Reimbursable Expenses incurred through the effective date of
termination provided all instruments of service have been
tendered to the OWNER..
2. (Deleted)
E. (Modified) Records of CONSULTANT's Costs.
Records of CONSULTANT's costs pertinent to
CONSULTANT's compensation tinder this Agreement shall
be kept in accordance with generally accepted accounting
pmcdces. Copies of such records will be made available to
OWNER upon request at no cost to OWNER.
F. Legislatitr Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
CONSULTANT's services or other costs in connection with
this Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes. fees, or costs be imposed, they
shall be in addition to CONSULTANT's estimated total
compensation.
G. (Added) Indebtedness. If CONSULTANT, at any
time during the term of this agreement, incurs a debt, as the
word is defined in section 2 -662 of the Code of Ordinances
of the City of Baytown, it shall immediately notify the
OWNER's Director of Finance in writing. If the OWNER's
Director of Finance becomes aware that the
CONSULTANT has incurred a debt, the OWNER's
Director of Finance shall immediately notify the
CONSULTANT in writing. if the CONSULTANT does
not pay the debt within 30 days of either such notification.
the OWNER's Director of Finance may deduct funds in an
amount equal to the debt from any payments owed to the
CONSULTANT under this Agreement, and the
CONSULTANT waives any recourse therefor.
ARTICLE 5.OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. CONSULTANT's opinions of probable
Construction Cost provided for herein are to be made on the
basis of CONSULTANT's experience and qualifications and
represent CONSULTANT's best judgment as an experienced
and qualified professional generally familiar with the
industry. However, since CONSULTANT has no control
over the cost of labor, materials, equipment, or services
furnished by others, or over the Contractor's methods of
determining prices, or over competitive bidding or market
conditions, CONSULTANT cannot and does not guarantee
that proposals, bids, or actual Construction Cost will not vary
from opinions of probable Construction Cost prepared by
CONSULTANT. if OWNER wishes greater assurance as to
probable Construction Cost, OWNER shall employ an
independent cost estimator as provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. (Deleted).
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
CONSULTANT under this Agreement will be the care and
skill ordinarily used by members of CONSULTANT's
profession practicing under similar circumstances at the some
time and in the same locality.
B. (Modified) CONSULTANT shall be responsible for
the technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. CONSULTANT shall
correct such deficiencies without additional compensation
except to the extent such action is directly attributable to
deficiencies in OWNER - furnished information upon which
CONSULTANT is authorized to rely as provided in Section
6.01.E.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
C. CONSULTANT shall perform or furnish
professional engineering and related services in all phases of
the Project to which this Agreement applies.
CONSULTANT shall serve as OWNER's prime professional
for the Project. CONSULTANT may employ such
CONSULTANT's Consultants its CONSULTANT deems
necessary to assist in the performance or furnishing of the
services. CONSULTANT shall not be required to employ
any CONSULTANT's Consultant unacceptable to
CONSULTANT.
D. CONSULTANT and OWNER shall comply with
applicable Laws or Regulations and OWNER - mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the busis for
modifications to OWNER's responsibilities or to
CONSULTANT's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for. and
CONSULTANT may rely upon. the accuracy and
completeness of all requirements. programs, instructions,
reports, data, and other information furnished by OWNER to
CONSULTANT pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER.
CONSULTANT may use such requirements, reports. data,
and information in performing or furnishing services under
this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
CONSULTANT.
G. Prior to the commencement of the Construction
Phase, OWNER shall nolify CONSULTANT of any
variations from the language indicated in Exhibit E, "Notice
of Acceptability of Work;' or of any other notice or
certification that CONSULTANT will be requested to provide
to OWNER or third parties in connection with the Project.
OWNER and CONSULTANT shall reach agreement on the
terns of any such requested notice or certification, and
OWNER shall authorize such Additional Services as are
necessary to enable CONSULTANT to provide the notices or
certifications requested.
H. (Modified) CONSULTANT shall not be required to
sign any documents, no matter by whom requested, that
would result in CONSULTANT's having to certify.
guarantee or warrant the existence of conditions whose
existence CONSULTANT cannot ascertain; provided, that
CONSULTANT has exercised due diligence and was not
otherwise required to certify, guarantee or warrant the
existence of such conditions.
I. During the Construction Phase, CONSULTANT
shall not supervise, direct, or have control over Contractor's
work. nor shall CONSULTANT have authority over or
responsibility for the means, methods, techniques, sequences,
or procedures of construction selected by Contractor, for
safety precautions and programs incident to the Contractor's
work in progress, nor for any failure of Contractor to comply
with Laws and Regulations applicable to Contractor's
furnishing and performing the Work.
J. (Modified) CONSULTANT neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
CONSULTANT from liability for any such failure about
which CONSULTANT knew or should have known existed
in the exercise of CONSULTANT's services under this
Agreement.
K. (Modified) CONSULTANT shall not be responsible
for the acts or omissions of any Contractor's). subcontractor
or supplier, or of any of the Contractor's agents or employees
or any other persons (except CONSULTANT's own
employees and its consultants for which it is legally liable) at
the Site or otherwise furnishing or performing any of the
Contractor's work; or for any decision made on
interpretations or clarifications of the Contract Documents
given by OWNER without consultation and advice of
CONSULTANT.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, CONSULTANT and OWNER shall designate
specific individuals to act as CONSULTANT's and
OWNER's representatives with respect to the services to be
performed or furnished by CONSULTANT and
responsibilities of OWNER under this Agreement. Such
individuals shall have authority to transmit instructions,
receive information, and render decisions relative to the
Project on behalf of each respective party.
6.03 Design without Construction Phase Services
(Deleted)
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
CONSULTANT grants to the OWNER an ownership interest
in the Instruments of Service. The CONSULTANT shall
obtain similar interests from the OWNER and the
CONSULTANT's consultants consistent with this
Agreement. Within seven days of any termination or
expiration of this Agreement, the CONSULTANT shall be
required to tender to OWNER all Instruments of Service;
provided OWNER has paid all monies, excluding any
disputed amount, due and owing to CONSULTANT in
accordance with this Agreement. With such ownership
interest. it is expressly understood by the parties hereto that
the OWNER may use the Instruments of Service for any
purposes which the OWNER sees fit, including, but not
limited to, subsequent construction, reconstruction, alteration,
and/or repairs of the Project. As a condition to the OWNER's
use of the Instruments of Service, the OWNER hereby
expressly agrees to remove the CONSULTANT's name and
all references to the CONSULTANT, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the
CONSULTANT, its officers. and employees and sub-
consultants, as well as their successors and assigns.
B. (Modified) Copies of OWNER - furnished data that
may be relied upon by CONSULTANT are limited to the
printed copies that are delivered to CONSULTANT pursuant
to Exhibit B unless otherwise expressly stated or
communicated by OWNER. Files in electronic media format
of text, data, graphics, or of other types that are furnished by
OWNER to CONSULTANT are only for convenience of
CONSULTANT. Any conclusion or information obtained or
derived from such electronic tiles will be at the user's sole
risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the CONSULTANT.
Files in electronic media formal of text. data, graphics, or of
other types that are furnished by CONSULTANT to OWNER
are only for convenience of OWNER. Any conclusion or
information obtained or derived from such electronic files
will be at the user's sole risk.
D. Because data stored in electronic media formal can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, tiller which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period.
CONSULTANT shall not be responsible to maintain
documents stored in electronic media formal after acceptance
by OWNER.
E. When transferring documents in electronic media
format, CONSULTANT makes no representations as to long-
term compatibility, usability, or readability of documents
resulting from the use of software application packages,
operating systems, or computer hardware differing from those
used by CONSULTANT at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
CONSULTANT from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
CONSULTANT to further compensation at rates to be agreed
upon by OWNER and CONSULTANT.
6.05 Insurance
A. CONSULTANT shall procure and maintain
insurance as set forth in Exhibit G. "Insurance"
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any lime, OWNER may request that
CONSULTANT, at OWNER's sole expense, provide
additional insurance coverage, increased limits, or revised
deductibles that are more protective than those specified in
Exhibit G. If so requested by OWNER. with the concurrence
of CONSULTANT, and if commercially available,
CONSULTANT shall obtain and shall require
CONSULTANT's Consultants to obtain such additional
insurance coverage, different limits, or revised deductibles for
such periods of time as requested by OWNER, and Exhibit G
will be supplemented to incorporate these requirements.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For carc►e.
a. (Modified) By either party upon 30 days
written notice in the event of failure by the other
party to perform in accordance with the terms hereof
through no fault of the terminating parry; or
b. By CONSULTANT upon seven days
written notice if CONSULTANT is being requested
by OWNER to furnish or perform services contrary
to CONSULTANT's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins. within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof; provided, however, that if
and to the extent such substantial failure cannot be
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
2. For convenience by OWNER effective upon the
receipt of notice by CONSULTANT.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by rite law of the
state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and CONSULTANT each is hereby bound
and the partners, successors, executors, administrators and
legal representatives of OWNER and CONSULTANT (and
to the extent permitted by paragraph 6.08.13 the assigns of
OWNER and CONSULTANT) tire hereby bound to the other
party to this Agreement and to the partners. successors,
executors, administrators and legal representatives (and said
assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
B. Neither OWNER nor CONSULTANT may assign,
sublet, or transfer any rights under or interest (including. but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or CONSULTANT to any Contractor,
Contractor's subcontractor, supplier. other individual or
entity. or to any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and CONSULTANT and
not for the benefit of any other party. The OWNER
agrees that the substance of the provisions of this
paragraph 6.08.0 shall appear in the Contract
Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to CONSULTANT that to the
best of its knowledge a Hazardous Environmental Condition
does not exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to CONSULTANT the existence of
all Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) if a Hazardous Environmental
Condition is encountered or alleged, CONSULTANT shall
have the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
CONSULTANT's scope of services does not include any
services related to a Hazardous Environmental Condition. In
the event CONSULTANT or any other party encounters a
Hazardous Environmental Condition, CONSULTANT may.
at its option and without liability for consequential or any
other damages, suspend performance of services on the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
portion of the Project affected thereby until OWNER: (i)
retains appropriate specialist consultanl(s) or contractor(s) to
identify and as appropriate, abate, remediate. or remove the
Hazardous Environmental Condition; and (ii) warrants that
the Site is in full compliance with applicable Laws and
Regulations.
E. OWNER acknowledges that CONSULTANT is
performing professional services for OWNER and that
CONSULTANT is not and shall not be required to become an
"arranger;' 'operator," "generator." or "transportce' of
hazardous substances, as defined in the Comprehensive
Environmental Response. Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Site in connection with CONSULTANT's activities under
this Agreement.
F. If CONSULTANT's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
CONSULTANT'S terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given
personally. or by registered or certified mail postage prepaid.
or by a commercial courier service. Additionally, notices
may be given via facsimile or by electronic mail if such notice
is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and (imitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severabflity
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and CONSULTANT,
who agree that the Agreement shall be reformed to replace
such stricken provision or part thereof with a valid and
enforceable provision that comes as close as possible to
expressing the intention of the stricken provision.
6.15 Waiver
A. Non - enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are far general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
I. Addenda -- Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
2. Additional Servicar —The services to be performed
for or furnished to OWNER by CONSULTANT in
accordance with Exhibit A, Pan 2 of this Agreement.
3. Agreement —This "Standard Form of Agreement
between OWNER and CONSULTANT for Professional
Services;' including those Exhibits listed in Article 8 hereof.
4. Application for Payment —The form acceptable to
CONSULTANT which is to be used by Contractor in
requesting progress or final payments for the completion of its
Work and which is to be accompanied by such supporting
documentation as is required by the Contract Documents.
5. Asbesias- -Any material that contains more than one
percent asbestos and is friable or is releasing asbestos fibers
into the air above current action levels established by the
United States Occupational Safety and Health Administration.
6. Basic Services -71te services to be performed for or
furnished to OWNER by CONSULTANT in accordance with
Exhibit A. Part 1, of this Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
7. Bid —The offer or proposal of the bidder submitted
on the prescribed form selling forth the prices for the Work to
be performed.
8. Bidding Doctrnrents --The advertisement or invitation
to Bid, instructions to bidders, the Bid form and attachments,
the Bid bond, if any, the proposed Contract Documents, and
all Addenda, if any.
9. Change Order —A document recommended by
CONSULTANT, which is signed by Contractor and OWNER
to authorize an addition, deletion or revision in the Work, or
an adjustment in lite Contract Price or the Contract Times,
issued on or after the Effective Date of the Constnrction
Agreement.
10, Constnncdon Agreennem- -The wrillen instrument
which is evidence of the agreement, contained in the Contract
Documents. between OWNER and Contractor covering the
Work.
11. Constnnction Contract —The entire and integrated
written agreement between the OWNER and Contractor
concerning the Work.
12. Constnuction Cost —The cost to OWNER of those
portions of the entire Project designed or specified by
CONSULTANT. Construction Cost does not include costs of
services of CONSULTANT or other design professionals and
consultants, cost of land, rights -of -way, or compensation for
damages to properties, or OWNER's costs for legal,
accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the
Project, or the cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement.
Construction Cost is one of the items comprising Total
Project Costs.
13. (Modified) Contract Documents -- Documents that
establish the rights and obligations of the parties engaged in
construction and include the Construction Agreement
between OWNER and Contractor and all documents
referenced therein, Addenda (which pertain to the Contract
Documents), Contractor's Bid (including documentation
accompanying the Bid and any post -Bid documentation
submitted prior to the notice of award) when attached as an
exhibit to the Construction Agreement, the notice to proceed,
the bonds, appropriate certifications, insurance documents
the General Conditions, the Supplementary Conditions. the
Specifications and the Drawings as the some are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders, Work
Change Directives, Field Orders, and CONSULTANT's
written interpretations and clarifications issued on or after the
Effective Date of the Construction Agreement. Approved
Shop Drawings and the reports and drawings of subsurface
and physical conditions are not Contract Documents.
14. Contract Price --The moneys payable by OWNER to
Contractor for completion of the Work in accordance with the
Contract Documents and as stated in the Construction
Agreement.
15. Contract Times- -The numbers of days or the dates
stated in the Construction Agreement to: (i) achieve Final
Completion, and (ii) complete the Work so that it is ready for
final payment as evidenced by CONSULTANT's written
recommendation of final payment.
16. Contractor --An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period! The time after Final Completion
during which Contractor must correct, at no cost to OWNER,
any Defective Work, normally one year after the date of Final
Completion or such longer period of time us may be
prescribed by Laws or Regulations or by the terms of any
applicable special guarantee or specific provision of the
Contract Documents.
18. Defective—An adjective which, when modifying the
word Work, refers to Work that is unsatisfactory, faulty, or
deficient, in that it does not conform to the Contract
Documents, or does not meet the requirements of any
inspection, reference standard, test, or approval referred to in
the Contract Documents, or has been damaged prior to
CONSULTANT's recommendation of final payment.
19. Documents —Data, reports, Drawings, Specifications,
Record Drawings, and other deliverables, whether in printed
or electronic media format, provided or fumished in
appropriate phases by CONSULTANT to OWNER pursuant
to this Agreement.
20. Drawings —That part of the Contract Documents
prepared or approved by CONSULTANT which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not Drawings
as so defined.
21. E.&Iive Date of the Constntction Agreement --The
date indicated in the Construction Agreement on which it
becomes effective, but if no such dale is indicated, it means
the date on which the Construction Agreement is signed and
delivered by the last of the two parties to sign and deliver.
22. E,fjectne Data oj the Agreement—The date indicated
in this Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
23. CONSULTANT'S Consultants -- Individuals or
entities having a contract with CONSULTANT to furnish
services with respect to this Project as CONSULTANT's
independent professional associates, consultants,
subcontractors, or vendors. The tern CONSULTANT
includes CONSULTANT's Consultants.
24. Field Order --A written order issued by
CONSULTANT which directs minor changes in the Work
but which does not involve a change in the Contract Price or
the Contract Times.
25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and the
Project has been finally accepted by the OWNER.
26. General Conditions -Thal part of the Contract
Documents which sets forth terms, conditions, and procedures
that govern the Work to be performed or furnished by
Contractor with respect to the Project.
27. Hazardous Environmental Condition- -The presence
at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste,
or Radioactive Materials in such quantities or circumstances
that may present a substantial danger to persons or property
exposed thereto in connection with the Work.
28. Hazardous More—The term Hazardous Waste shall
have the meaning provided in Section 1004 of the Solid
Waste Disposal Act (42 USC Section 6903) as amended from
time to time.
29. Liss and Regulations; Lass or Regulations —Any
and all applicable laws, rules, regulations, ordinances, codes,
standards, and orders of any and all governmental bodies,
agencies, authorities, and courts having jurisdiction.
30. PCB's -- Polychlorinated biphenyls.
31. Petroleum — Petroleum, including crude oil or any
fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fnitrenheit and 14.7
pounds per square inch absolute), such as oil, petroleum, fuel
oil, oil sludge, oil refuse, gasoline. kerosene, and oil mixed
with other non - Hazardous Waste and crude oils.
32. Radioactive X/aterials -- Source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of
1954 (42 USC Section 2011 et seq.) as amended from time to
time.
33. Record Drms -ings »The Drawings as issued for
construction on which the CONSULTANT, upon completion
of the Work, has shown changes due to Addenda or Change
Orders and other information which CONSULTANT
considers significant based on record documents furnished by
Contractor to CONSULTANT and which were annotated by
Contractor to show changes made during construction.
34. Reimbursable Erpenses --The expenses incurred
directly by CONSULTANT in connection with the
performing or furnishing of Basic and Additional Services fur
the Project for which OWNER shall pay CONSULTANT as
indicated in Exhibit C.
35. Resident Project Representative--The authorized
representative of CONSULTANT, if any. assigned to assist
CONSULTANT at the Site during the Construction Phase.
The Resident Project Representative will be
CONSULTANT's agent or employee and under
CONSULTANT's supervision. As used herein, the term
Resident Project Representative includes any assistants of
Resident Project Representative agreed to by OWNER. The
duties and responsibilities of the Resident Project
Representative are as set forth in Exhibit D.
36. Saurpks-- Physical examples of materials,
equipment, or workmanship that are representative of some
portion of the Work and which establish the standards by
which such portion of the Work will be judged.
37. Strop Drawings —All drawings, diagrams,
illustrations, schedules, and other data or information which
are specifically prepared or assembled by or for Contractor
and submitted by Contractor to CONSULTANT to illustrate
some portion of the Work.
38. Site—Lands: or areas indicated in the Contract
Documents as being furnished by OWNER upon which the
Work is to be performed, rights -of- -way and easements for
access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
39. Specifications --Thal part of the Contract Documents
consisting of written technical descriptions of materials,
equipment, systems, standards, and workmanship as applied
to the Work and certain administrative details applicable
thereto.
40. Sruhctantial Completion- -The time at which the
Work (or a specified part thereof) has progressed to the point
where, in the opinion of CONSULTANT, the Work (or a
specified part thereof) is sufficiently complete, in accordance
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
with the Contract Documents, so that the Work (or a specified
part thereof) can be utilized for the purposes for which it is
intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work
refer to Substantial Completion thereof.
41. Supplementary Conditions --Thal part of ilia Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) Total Project Costs --The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of CONSULTANT or other design
professionals and consultants. cost of land. rights -of -way.
compensation for damages to properties. OWNER's costs for
legal, accounting, insurance counseling or auditing services.
interest and financing charges incurred in connection with the
Project, and the cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement.
43. lVork- -The entire completed construction or the
various separately idcntiftable parts thereof required to be
provided under the Contract Documents with respect to this
Project. Work includes and is the result of performing or
fumishing labor, services, and documentation necessary to
produce such construction and furnishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44. !fork Change Directi%% —. A written directive to
Contractor issued on or alter the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the CONSULTANT, ordering an
addition, deletion, or revision in the Work, or responding to
differing or unforeseen subsurface or physical conditions
under which the Work is to be performed or to emergencies.
A Work Change Directive will not change the Contract Price
or the Contract Times but is evidence that the parties expect
that the change directed or documented by a Work Change
Directive will be incorporated in u subsequently issued
Change Order following negotiations by the parties as to its
effect, if any, on the Contract Price or Contract Times.
45. Written Atnendinent - -A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with The non - engineering or non - technical
rather than strictly construction - related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "CONSULTANT's Services." consisting
of eight (8) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C. "Payments to CONSULTANT 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 11. "Dispute Resolution." is not used.
Exhibit I, "Allocation of Risks," is not used.
J. Exhibit J. "Special Provisions' is not used.
K. (Added) Exhibit K. "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages l to 12
inclusive. together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
CONSULTANT and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified. or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the some Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I 1 of 12
IN \VITNCSS WHEREOF, the parties hereon have executed this Agreement, the Effective Date of which is
indicated on page 1.
mvm"R: CrrY OF BAYTOWN CONSULTANT: WINDROSE LAND SERVICES.
INC. ,
Sigma tire:
Printed Name: Garrison C. Brumback Printed Nan+v,J anne Kidae 1
'title; C'ih• itlunaeer
Date Signed:
Address for giving notices:
P.O. Box ,124
Bavlo►en. •Texas 77527
Designated Representative (puragraph 6.02.A):
Name: Jose A. Pastrana. P.I .
Tifle: Directorof Eiuginccring
Phone Number: (281) -320 -71 i•I
Facsimile: Number: (281) 420 -6586
1: -Flail Address: jose.pastrsna(r- bssyton n.org
"title: 111-eidenl
Date Sialletl: 1/7 ALl
Address for -iving notices:
31128 Weslchase
I louston. "Texas 77042
Designaled Representative (paragraph 6.02.A):
Name: Jeanne Kidwell
Tille: President
Phone Number: (7133) - 155 -22SI
Facsimile Ntunher: (713) X161 -1151
1- i1•lailAddress :__jratutr.l �tl►►'rll u m indru;c.;cr► icrs,�'oin
Standard Form of Agreement
iielween Owner amt Engineer for professional Services
Page 12 of 12
')'his is EXHIBIT A, consisling of 8 pages, referred to in and
Part of the Agreement between OWNI'.It and
CONSU1: I'AN'I' for Profi- ssional Ser%-Ices dated
Initial:
011'NER
C'ONSUI- 'PANT
i
CONSUI: fANT's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the panics.
CONSULTANT shall provide Basic and Additional Services as set firth below.
PART 1 -- BASIC SERVICES Oloditied)
A1.01 i'reliminduy Design Musse
A. CONSULTANT shall:
1. Consult %vilh OWN FR to del inc and clarify OWNER 's requirements for the Project and available data.
?. Advise OWNI:11 as to the necessity of O11'N1:R'S providing data or services of the types described in
Exhibit B. which are not part of CONSULTANT's Ilasic Services. and assist OWNER in obtaining
such data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by CONSULTANT, including,
but not limited to, mitigating measures identified in the environmental assessment (if any).
Identify and evaluate potential solutions available to OWNf:R: and, after consultations with OWN Ell.
4. recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's
requirements for the Projecl.
5. (Modified) Auend nmectings with OWNER a► receive input into OWNER'S requirements tur the
Project and evaluation of potential solutions available to OWNER and to discuss and finalize design
criteria and acquire pertinent information regarding the Project.
6. (Modified) Perlorm or provide the hollowing additional Preliminary Design Phase tasks or deliverables:
a. I'rcpare and deliver a schetlule for the design of the Projecl:
b. Prepare abstrtct map. which identifies rights -of -way ofcxisling streets as well as loc:nions ofplai
and lot boundaries ofadjacent properties within the subject area.
c. Prepare site control survey. which establishes tine project baseline, locales rights- of -%vay
nu +nunenlatiun, sets control mununtcnls and flINI's:
d. I'repare control monument sheet for site control monuments and prepare overall project alignment
control ntap.
c. Prepare topographic & underground ulilit} Survey ofapproximately 16.405 linear feet of public
right - of -%nay (35' x- scclions C.O.B. Daltim. 2001 Adjustment);
f: Prepare or cause to be prepared preliminary engineering studies and designs directly related to the
Project.
;. (Niodilied) Prepare a summary report (the "Report ") which will conlain findings, comparisons of
alternatives. and recommendations for the Project. This report shall include all land surveying
deliverables, including. but not limited to hard copy of drawings as well as electronic CAD drawings.
This Report will he accompanied by CONSULTANT's opinion of 'Total Project Costs for each
I'age 1 01, 8, Pages
(1•:XIIIIiCI' A - Scope of Work)
solution which is so recommended for the Project with each component separately itemized, including
the following, which will be separately itemized: opinion of probable Construction Cost, allowances
for contingencies and for the estimated Total Project Costs. The Report shall include an overall
exhibit showing the Project streets and the photographs of the streets.
8. Furnish six (6) review copies of the Draft Report to OWNER within eighty -five (85) calendar days of
authorization to begin services and review it with OWNER.
9. Revise the Draft Report in response to OWNER's and other parties' comments, as appropriate, and
furnish four (4) final copies of the revised Report to the OWNER within ten (10) calendar days alter
completion of reviewing it with OWNER.
B. (Modified) CONSULTANT's services under the Preliminary Design Phase will be considered complete on
the date when the final copies of the revised Report has been delivered to and accepted by OWNER.
A 1.02 Final Design Phase
A. Upon written authorization from OWNER, CONSULTANT shall:
I. (Modified) Prepare final Drawings indicating the scope, extent, and character of the Work to be
performed and furnished by Contractor. 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 CONSULTANT.
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costs known to CONSULTANT.
4. Perform or provide the following additional final Design Phase tasks or deliverables:
a. Acquire all agency approvals of the final design and the Project.
S. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other
advisors, as appropriate, and assist OWNER in the preparation of other related documents.
6. Submit fafleen (15) final copies of the Bidding Documents and u revised opinion of probable Construction
Cost to OWNER within sixty (60) days after authorization to proceed with this phase.
7. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation,
including plans and specifications, were originally prepared to reflect these items, as reasonably requested
by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents.
B. In the event that the Work designed or specified by CONSULTANT is to be performed or furnished under
more than one prime contract, or if CONSULTANT's services are to be separately sequenced with the work
of one or more prime Contractors (such as in the case of fast - trucking), OWNER and CONSULTANT shall,
prior to commencement of the Final Design Phase, develop a schedule for performance of CONSULTANT's
services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order
to sequence and coordinate properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by CONSULTANT upon which the
CONSULTANT's compensation has been established under this Agreement is one (1).
Page 2 of 8 Pages
(EXHIBIT A - Scope of Work)
D. (Modified) CONSULTANT's services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A 1.03.A.6 have been delivered to and accepted by OWNER.
A l .03 Bidding or Negotiating Phave
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to
proceed, CONSULTANT shall:
1. Assist OWNER in advertising for and obtaining bids for the Work and provide 15 sets of plans and
specifications.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phasc tasks or deliverables:
a. Recommend award to the OWNER.
b. Attend the Council meeting for award of the contract for the Project.
5. (Modified) Attend the Mandatory Pre-Bid Conference and the Bid opening, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding
contracts for the Work.
6. (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.
A 1.04 Corstnictior Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER. CONSULTANT shall:
1. General Administration of Coutnnction 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 CONSULTANT as assigned in said General Conditions shall not be
modified, except as CONSULTANT may otherwise agree in writing. All of OWNER's instructions
to Contractor will be issued through CONSULTANT, 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) Consinction and Materials Testing. Provide construction material testing, including
concrete inspections, concrete test cylinders, reinforcing steel inspection and provide an engineering
and report review as necessary for the Project. CONSULTANT shall provide two sets of blue prints
(civils and structurals) and one copy of the specification book to CONSULTANT's construction and
material testing subconsultant.
3. Pre- Corsinrctiorr Co ference. Participate in a Pre- Construction Conference prior to commencement
of Work at the Site.
Page 3 of 8 Pages
(EXHIBIT A - Scope of Work)
4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating
the Work which in CONSULTANT's judgment are necessary to enable Contractor to proceed.
5. Visits to Site and Observation ojCorzsrnrction. 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 CONSULTANT 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 CONSULTANT, and the
Resident Project Representative, if any, arc 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 CONSULTANT 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 CONSULTANT's
exercise of professional judgment as assisted by the Resident Project Representative, if any.
Based on information obtained during such visits and such observations, CONSULTANT will
determine if Contractor's work is proceeding in accordance with the Contract Documents, and
CONSULTANT shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of CONSULTANT's visits to. and representation by the Resident
Project Representative, if any, at the Site. will be to enable CONSULTANT to better carry out
the duties and responsibilities assigned to and undertaken by CONSULTANT during the
Construction Phase. and. in addition. by the exercise of CONSULTANT's efforts as an
experienced and qualified design professional, to provide for OWNER a greater degree of
confidence that the completed Work will substantially conform to the Contract Documents and
that the integrity of the design concept of the completed Project as a functioning whole as
indicated in the Contract Documents has been implemented and preserved by Contractor.
CONSULTANT 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
CONSULTANT 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,
CONSULTANT 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.
b. (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. CONSULTANT 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 irttet7tretatiotcs; Field Onlers. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
the Contract Documents. CONSULTANT may issue Field Orders authorizing minor variations from
the requirements of the Contract Documents.
S. Change Orders curd 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
Page 4 of 8 Pages
(EXHIBIT A - Scope of Work)
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. CONSULTANT has an obligation to meet any Contractor's submittal schedule that has
earlier been acceptable to CONSULTANT.
10. Substinites 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.
bnspeclions and Tears. 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. CONSULTANT's review of such
certificates will be far 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. CONSULTANT shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements beniren 01MER 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, CONSULTANT shall be fair and not
show partiality to OWNER or Contractor.
13. Applications jar Papntent. Based on CONSULTANT'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 CONSULTANT recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute CONSULTANT's
representation to OWNER, based on such observations and review, that, to the best of
CONSULTANT'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 ftnctioning 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 CONSULTANT's responsibility to observe Contractor's work. In the case of unit price
work, CONSULTANT'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 CONSULTANT contained in
paragraph A 1.04.A.S.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, CONSULTANT shall not thereby be deemed to have
represented that observations made by CONSULTANT to check the quality or quantity of
Contractor's work as it is performed and furnished have been exhaustive, extended to every
aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond
the responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract
Documents. Neither CONSULTANT's review of Contractor's work for the purposes of
recommending payments nor CONSULTANT's recommendation of any payment including
final payment will impose on CONSULTANT 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
Page S of 8 Pages
(EXHIBIT A - Scope of Work)
will also not impose responsibility on CONSULTANT 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 Docunnewr.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. CONSULTANT will
compile this information as provided by Contractor. and deliver three (3) copies of the same to
OWNER.
b. (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 arc to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such CONSULTANT's review will be limited as provided in
paragraph A 1.04.A.9.
c. CONSULTANT shall transmit these documents to OWNER within thirty days of receipt of
documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a formal approved
by the OWNER and on mylar showing appropriate record information based on Project annotated
record documents received from Contractor.
15. Substantial Conpledot. 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 Substantially Complete. If aller considering any objections of OWNER, CONSULTANT
considers the Work Substantially Complete. CONSULTANT shall deliver a certificate of Substantial
Completion to OWNER and Contractor.
16. (Modified) Final Notice of Acceptability. of the 111ork. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall
also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that
to the best of CONSULTANT's knowledge, information and belief and upon the exercise of
CONSULTANT'S due diligence, the Work is acceptable and is in compliance with the Contract
Documents.
B. Duration of Constnuction 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
Contractors. if the Project involves more than one prime contract as indicated in paragraph A1.02.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
C. Limitation of Respoacihilities. CONSULTANT 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
famishing any of the Work. CONSULTANT 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 Sen -ices Requiring OWNER 's Authorization iu Adtiwncc,
Page 6 of 8 Pages
(EXHIBIT A - Scope of Work)
Not Included
A2.02 Required Addltloiial Services
Not Included
Page 7 of 8 Pages
(EXHIBIT A • Scope of Work)
This is EX111131T It. consisting of 2 pages, referred to in and
part of the Agreement between OA%'NF:It and
CONSULTANT for Professional Services dated
Initial:
OWNER
C'ONSUI:I'
ONVN ?it's Responsibilities
Article'_ of the Agreement is amended and supplemented to include the following agreement of the parties.
132.01 In addition to other responsibilities ofO\VNtat as set lorth in this Agreement, OWNER shall:
A. Provide CONSULTANT with all criteria and lull infimnation as to OWNER's requirements for the Project.
including- desiaa objective, and constraints. space, capacity and pertonnance requirements. flexibility, and
expandability. and any budgetary limitations; and tumish copies of all design and construction standards which
OWNER will require a► be included in the Drawings and Specifications; and furnish copies of CAVNER's standard
toms. conditions, and related documents for CONSUL: rAN'r io include in the Bidding Documents, when applicable.
13. Furnish to CONSUI: rANT any other available intiantation pertinent to the Project including reports and (1:11.1
relative lu previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall he construed to require the OWNER to provide such records in :un• certain format. The format in
twhich the existing data and documentation will be provided shall be at the sole discretion of 1he OWNER.
C. (Modified) Following CONSULTANT" s assessment of initially- available Project inforntation and data and
upon C'ONSULTANI "s written request. Rimish or otherwise snake available such additional available Project related
inli►rmation and data a% is reasonably required to enable CONSULTANT to complete its Basic and Additional Services.
I. (Deleted).
2. (Deleted).
3. (Deleted).
d. (Deleted).
-5. (Deleted).
6. ( Deleted ).
D. (Deleted).
I:. (\klodilied) Authorize CONSUL: rANr to provide Additional Services as set firth its Part 2 of Exhibit A of the
Agreement as the OWNER determine. is necessary.
F. (.Modified) Arrange lir access to and make all provisions for CON SUUrANT to enter upon public and private
property as required fir C'ON%I -: L'I'.\ N'I' to perlimn services under the Agrecu►ent.
G. Examine all alternate solutions, studies. reports. sketches. Drawings. Specifications. proposals, and other
documents presented by CONSULTANT (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriae with respect to such examination) and render in writing timely
decisions pertaining thereto.
Page I of 2 Pages
(Exhibit It — OWNER's Responsibilities)
H. (Deleted).
1. (Deleted).
J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and constructability review.
K Deleted
L. Deleted
M. Deleted
N. Deleted
Page 2 of 2 Pages
(Exhibit B— OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between O\YNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
C'ONSUL'i' :\ \_lam
Puvnaents to CONSULTANT for Services :and Reintbursuble Expenses ,
v
Article -1 of lite Agreement is amended and
supplemented to include the Collowing agreement of the
parties:
ARTICLE 4 -- PAYMENTS TO.1'I If- CONSULTANT
C'4.01 Eor Bash Ser vices Having : I lklermine(l
Scope - -Cost not m lixceecl.11efhod of l'avattvrr
:1. OWNl:it shall pay CONSUL: PANT for Basic
Services set forth in Exhibit A as follows:
1. (\loditled) A cost tu►l to exceed
amount of S 1011.215, based upon the rate schedule.
which is attached as Appendix I of Exhibit C and
incorporated herein for all intents and purposes.
This atnounl does not include those
CONSULTANT'S C'onsultant's charges as provided
below in this Article •1, Subparagraph C'4.05, and
will he distributed at the completion of each of the
phase in the R►Ilo►wing amuwnt:
Preliminary I
S,1.ttu()
143,7 15
! Ste -1,715
I)esil;n �
!
Final Design !
, i, >Il(1
(t-
,
I S_1 5110
Phase
_
_
1
Bidding and i
Negotiating
S1,000
-U-
51.000
Services
Construclion j
jy ll({U
-(1-
j9,1100
Phase
2, (Modified) CONSULTANT may with the
consent of OWNER alter tits distribution of
compensation between individual phases noted
herein to be consistent with services actualh
rendered, but .hall not exceed the total cost nol to
exceed amount unless approved in writing by the
OWNER.
services of CONSULTANT 's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. Deleted.
5. The portion of the antounl billed 12►r
CONSUL: TANT 's services will be based upon total
services actually completed during the billing
period, which shall be a calendar month. Invoices
shall be tendered no more often than once a month
for all of lite services pertbnned during lite
applicable month.
04.02 For Basic Services llavhr iz :In Uudcteomiuecl
Sc•o1w -- Direct Litho►• Costs runes a Eactor
M thocl ol- I'o►-ment
A. (Not Used).
C'•1.03 F(u•:iciclithmalServices
A. OWNER shall pay CONSULTANT for
Additional Services as follows:
1. Cenral For services of
CONSULTANT's employees engaged directiv on
the Project pursuant to paragraph A2.01 or A2.02 of
Exhibit A of the Aureen►ent, except for services as a
consultant or witness under paragraph A2.01.A.13,
an amount teased upon the actual hours worked and
the rate schedule, which is attached as Appendix I
of Exhibil C and incorporated herein for all intents
and purposes plus Reimbursable Expenses.
Additional Services shall not lie perfonned without
the prior written consent of the OWNE3R.
1. The cost not to exceed includes C'•1.0.1 For Heir ► ►btu•scrble E.yenses
compensation for C'ONSULTANT*s services and
Page 1 of 2 Pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
A. (Modified) When not included in compensation
for Basic Services under paragraph C4.01. OWNER
shall pay CONSULTANT for Reimbursable
Expenses as the rate set forth in Appendix 2 of this
Exhibit C. Before the OWNER shall be liable for
any reimbursable expenses, the CONSULTANT
must obtain prior written approval of the OWNER
of any expense that exceeds S 1.000 for which the
CONSULTANT seeks reimbursement.
Reimbursable Expenses shall not exceed SbM
without the prior written consent of the Owner.
Such reimbursable expense includes S00 for the
creation of up to three legal descriptions with
exhibits if required for easements.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications.
Bidding Documents, and similar Project - related items in
addition to those required under Exhibit A. and, if
authorized in advance by OWNER.
C. The amounts payable to CONSULTANT for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
CONSULTANT, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of t 110).
D. Deleted.
E. (Added) The OWNER must approve all travel
expenses before the same are incurred. if such approval
is not obtained, the OWNER shall not be liable for such
travel expenses.
C4.05 For CONSULTANT s Consultants Charges
A. (Modified) Whenever compensation to
CONSULTANT herein is stated to include charges of
CONSULTANT's Consultants, those charges shall be
the amounts billed by CONSULTANT's Consultants to
CONSULTANT times a Factor of (1.J. The
consultant charges shall not exceed the following
amounts specified for each of the following services,
unless approved in writing by the OWNER. The charges
include the factor, and shall not exceed the following
without prior written consent of the OWNER.
Construction & Materials Testing S8.605
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and wages
paid to CONSULTANT's employees but does not
include payroll related costs or benefits.
B. (Deleted).
4.07 Faclars
(Deleted)
C4.08 Other Provisions Concerning Payment
A. Progress Po),ments. The portion of the
amounts billed for CONSULTANT's services
which are identified in paragraphs C4.01 and C4.03,
will be based on the Direct Labor Costs for the
cumulative (tours charged to the Project during the
billing period by all of CONSULTANT's
employees, plus Reimbursable Expenses and
CONSULTANT's Consultant's charges, if any.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Cost not to Erceed Method of Payment)
APPENDIX 1 OF EXHIBIT C— HOURLY RATES
Hourly Rates for Consultant Staff.
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
Staff Category Hourly Rate
Principal.................................................. ............................... S180.00
ENGINEERING
EngineerVI ................................................... ........................S170.00
EngineerV .............................................. ............................... S135.00
EngineerIV ............................................ ............................... S115.00
EngineerIII ................ .......................».... ............................... S100.00
Engineer11 .............................................. ............................... S 90.00
Engineer 1 ............................................... ............................... S 85.00
Designer .................................................. ............................... S 80.00
Project Representative ............................ ...................... ».......S 75.00
Administrative Assistant ................... ..... ................................ S 60.00
AWWWWLt,
Surveyor RPLS ..............»............................. ........................S150.00
3 -Man Field Party ................................... ............................... S125.00
2 -Man Field Party ................................... ............................... S100.00
t -Man Field Party .................................... ..............................S 85.00
CADDTech ............................................ ............................... S 75.00
Expert Witness Preparation......... ............ ..............................S 65.00
ComputerOperator .................................. ..............................S 65.00
SurveySupervisor ................................... ..............................S 75.00
Research Specialist .................................. ..............................S 75.00
Clerical................................................... ............................... S 35.00
Page 1 of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS
Reproduction and Deliveries: Cost plus 10%
Mileage: IRS Rate
Page 1 of I Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
This is EXHIBIT G. consisting of? pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dined
Initial:
OWNER
CONSULTAI' "1' ,•�
Paragraph 0.05 of the Agreement is :upended a nd supplentcntetl to include the Following agreement of the parties.
Ci6.05 btsremrcr
Throughoul the term of this Agreement, the CONSULTANT at its own expense shall purchase, maintain and keep
in force and effect insurance against claim. for injuries to or death of persons or damages to property which may
arise out of or result from the CONSULTANT i operations and/or perforn► :ance of the work under this Agreement.
whether such operations and/or performance be by the CONSULTAN'r, its agents, representatives. volunteer.
employees or subcontractors or by anyone direct]\, or indirectly employed by any of them. or by anyone for whose
acts any uI'lhetta m;ay he li;ablc.
The CONS ULTANT "s insurance covermw shall be primary insurance with tespect to the OWNER, its officer,
agents and employees. Any insurance or self - insurance maintained by the OWN11 -- its ollicials, agents and
employees shall he considered in excess of the CONSULTANT's insurance and shall not contribute to it. Further,
the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability
policies or shall ti►rnish separate certificates an([ endorcmenis flur each subcontractor. All coverage Ibr
subcontractor shall be subject to all of the requirements staled herein.
The following is a list of xlandard insurance policies along with their respective minicnt m coverage anwunts
required in this contract:
Commemial General liability (CGL)
General Aggregate: S 1.000.000
Products & Compleled Operations: S 1,000,000
Personal & Advertising Injury: 51,000,000
Per Occurrence: S500.000
a. Coverage shall be at least as broad as ISO CG Old 01 10 93
b. No coverage shall be excluded firoul standard policy without notification of individual exclusions being
attached liar review and acceptance.
Business Automobile Policy (RAC)
Combined Single Limits: S 1.000.000
a. Coverage for "Any Auto."
Worker' Compensation Insurance
Slalmory Limits
Employer's Liability $;00.0[10
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: 5500,000
a. For all engineers, and/or design companies.
Page I oP3 Pages
(Exhibit C - Insurance)
b. Claims -made form is acceptable.
c. Coverage will be in force for three (3) years alter project is completed.
Upon execution of this contract, CONSULTANT 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 CONSULTANT shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements upplicable to all policies:
a. AM Best Rating of B +:VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & 0 can be on claims -made form.
d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general
liability and business automobile policies.
e. Upon request of and without cost to OWNER, certified copies of all insurance policies und/or certificates of
insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of
insurance coverage shull be provided to OWNER's representative prior to execution of this agreement.
f: Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance coverage
shall be furnished to OWNER's representative.
Page 2 of 2 Pages
(Exhibit C - Insurance)
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ACTION OR PROCEEDING IS BROUGHT AGAINST THE
OWNER FROM WHICH THE OWNER IS INDEMNIFIED,
CONSULTANT FURTHER AGREES AND COVENANTS TO
DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE OWNER. THE 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.
Nothing herein shall be construed so as to limit or waive OWNER'S sovereign
immunity. CONSULTANT 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
CONSULTANT's work to be performed hereunder. This release shall apply with
respect to CONSULTANT's work regardless of whether said claims, demands, and
causes of action are covered in whole or in part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and /or expiration of this Agreement.