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Ordinance No. 11,507()RDINANCE O. 11,507 AN ORDINANCE OF uni a MUNCIL OF ME crn, OF 11AYUMN. WY AS, APPROVING ME PROFESSIONAL SERVICKS AGREEN111141' BE-num wf,' MYTOWN ARFA WAH-,',R AU 1110RI 1-Y AND iw,W-COUM PIRN11, IN(."- IN AN AMUNT WMIT) Excim)"rwo HUNDRE'D SIX'I'Y-SEVI,-,N'1'11(a(, JS ANI-) LI(d I'l, 11LAWRITI) ANI) N01100 DOLLARS 0267,800.00) FOR FN4I-,'RGI:",NCY IMI1R0VI",'MI-,N'rs AT 13AY"R-,)NVN ARLA WAIER A( 111101(f]'Y'S WA'H-R WI iLRHAS, the 1: oarrtl of'Direclors of Ow Ibyw"ii Area NVater Authority ("BAWA-)aulhorized a pro Ilessiol 1,11 services agreement xvidi Malcohn Wde. Inc, fbr einerg ecy wet - inip r velets , It Baytown, eNrca Water Authority's wider treaturient plarH in all aniount of "r' 'C) HUNI)RE'D SIX'Y)'- Sf,-,,VI",N'I'1 IOUSAND 1 .1(d If 1,[UNDREI") AND NO/100 DOLLARS ($267,800.00); and W! TREAS, We legislation creatkg the Mytown Area Water Authority (-BAWj\") requires that we Coy COMM of' tile City of BaY1(')\vll approve Contracts entered into bye HAWA-, anti W11FREAS, the C,ity Council ot-ime c, orf3giown believes dud such conuaa is deArabl, M. and advantageous, Wr the perknuance or the 13 A WA's rights aaracl powers; NOW 'I'll HIT MORDAIIJIM BY "11 IE CH 'Y COUNCIL OF 11 IF CI'I'Y OF BAY'I'0\k1NJ'I?XA& Section 1:: 'I'lint the Coy Council of, tile City (A' Baytown, 'rexas, hereby approves tile 11MOssional Services Agreeincia bamen die Haylowi Area WaterAtithorky and �%,Izdcohn Pirflic, Inc,, Ar emeMoicy powo- improvements at Baylo%vii Area \k'aler Authority's water treatillent plant which is allached hvr-"to as Exhibit "Wand Wcorpmwed herein W aH hHents wKI purposes. Section 2: 'I'his Wbuincu shMI We efflet imnlettimely Q& amd after its passage by the Coy COMWH of Me Coy Or H"UMM' IN] RODUCED, READ suid. PASSED by the nflinnadve er, 2010, APPROVI,f) AS ]'O I"01M i N ........ . NC City A o lie ne', y r the (11, MY! of the City of S1-V?IfE,'N-IL DONCARLOS, Nla KCYhm!QWJ K=QW&A, (AmncWQTnmwQ010 I"0w endwMonnm cBAWAMWdmKmwUwUma&' : Exhibit "A" CONTRACT PART I AGREEMENT THIS AGREEMENT, entered Into this _ day of , 2010, by and between the BAYTOWN AREA WATER AUTHORITY, hereinafter called "BAWA,' and MALCOLM PIRNIE, INC., hereinafter called "Firm ° WITNESSETH THAT: WHEREAS, BAWA desires to implement a water treatment plant emergency power Improvements project under the general direction of the Texas Department of Rural Affairs' CDBG Disaster Recovery Entitlement Grant Program; and WHEREAS, BAWA desires to engage the Firm to render certain services In connection with its water treatment plant emergency power Improvements project; NOW THEREFORE, the parties do mutually agree as follows: Some of Services Part II, Scope of Services, is hereby Incorporated by reference into this Contract. Further, the performance standards relating to water facilities -1a, which Is incorporated into the Texas Department of Rural Affairs Contract No. DRS010220, CDBG Disaster Recovery Entitlement Grant Program (the 'Grant "), and as hereinafter amended, are Incorporated herein by this reference and are Included as the Scope of Services required for the project. All services shall be performed in accordance with and meeting all of the requirements of the Grant. 2 Time of Performance. The services of the Firm shall commence on the issuance by BAWA of a written notice to proceed. In any event, all of the services required and performed hereunder shall be completed no later than March 6, 2012. 3 Access to Information. a. ` Except as provided in subsection b, it Is agreed that all Information, data, reports and records and maps as are existing, available and necessary for the carving out of the work outlined above shall be fumished to the Firm by BAWA and Its agencies. No charge will be made to for such Information and BAWA and Its agencies will cooperate with the Firm to facilitate the performance of the work described In the contract. Nothing contained in this section or Contract shall be construed to require BAWA to provide such records in any certain format. The format In which the existing data and documentation will be provided shall be at the sole discretion of BAWA. b. The Firm understands and agrees that any and all GIS data provided by BAWA and copies of the same (i) are property of BAWA; (0) shall not be given, sold, or otherwise distributed to other parties In any way; and (iii) will be deleted and /or destroyed at the conclusion of this Contract. Upon completion of this Contract and prior to final payment by BAWA for the same, the Finn shall provide a sworn statement from an appropriate officer of the Firm to the Director of Information Services Department. certifying that the data has been deleted from all computers systems on which it was used or placed and that all other copies have been destroyed. The Firm understands that certain data sets are licensed to BAWA and distribution to parties not authorized Is a direct violation of the licensing agreement. Failure to comply with any applicable license agreement or the terms hereof will result in irreparable damage to BAWA for which it may seek legal and equitable relief, including attorney's fees. 4 Compensation and Method of Payment. a. The maximum amount of compensation and reimbursement for all services to be paid hereunder shall not exceed (i) fifteen percent (15%) of the amount bid by the successful bidder of the Project or (II) TWO HUNDRED SIXTY -SEVEN THOUSAND EIGHT HUNDRED AND NO /100 DOLLARS ($287,800.00), whichever is less. Payment to the Firm for basic engineering services shall be in the amount of TWO HUNDRED FORTY- FOUR THOUSAND FIVE HUNDRED AND NO1100 DOLLARS ($244,500.00) and to be paid based on satisfactory completion of identified milestones in Part III "Payment Schedule' of this Contract. Payment to the Finn for Special Services shall be In the amount of TWENTY THREE THOUSAND THREE HUNDRED AND NO1100 DOLLARS ($23,300.00) and to be paid per method described In Part III and Invoiced no more frequently than once monthly. b. BAWA has no BAWA funds for the services to be rendered under this Contract. It is expressly agreed and understood that this Contract is predicated and conditioned upon BAWA receiving funds for the purpose of paying the entire obligation of BAWA under this Contract from funds to be received from the Grant. The Firm agrees that BAWA will not be responsible for the payment for services if the Grant funds referenced hereinabove are not available for the payment of the same. Indemnification. The Firm shall comply with the requirements of all applicable laws, rules and regulations. and shall exonerate, and hold harmless BAWA and its agency members from and against them, and shall assume full responsibility for payments of Federal, State and local taxes on contributions Imposed or required under the Social Security, worker's compensation and Income tax laws. THE FIRM AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND BAWA, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS "BAWA ") 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 CONSULTANT OR THE CONSULTANTS AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANTS PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND BAWA, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT BAWA FROM THE CONSEQUENCES OF CONSULTANTS PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANTS PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT. 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 CONSULTANTS PARTIES. IN THE EVENT 2 THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST BAWA FROM WHICH BAWA IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO BAWA. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND /OR EXPIRATION OF THIS CONTRACT. 6. Miscellaneous Provisions a. This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Harris County, Texas. b. This Contract shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Contract. C. In any case one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, Illegality, or unenforceability shall not affect any other provision thereof and this Contract shall not be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. d. If any action at law or in equity Is necessary to enforce or interpret the terms of this Contract, the prevailing party shall be entitled to reasonable attorney's fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. e. This Contract may be amended by mutual agreement of the parties hereto and a writing to be attached to and incorporated into this Contract. f. The Finn shall perform all services under this Contract with the care and skill ordinarily used by members of the Firm's profession practicing under the same or similar circumstances, time and locality. g. Upon execution of this Contract, the Firm grants to BAWA an ownership interest in the Instruments of Service. The Finn shall obtain similar interests from BAWA and the Firm's consultants consistent with this Contract. The Firm shall be required to tender to BAWA all Instruments of Service upon expiration or earlier termination of this Contract. With such ownership interest, it is expressly understood by the parties hereto that BAWA may use the Instruments of Service for any purposes which BAWA sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and /or repairs of the Project. As a condition to BAWA's use of the Instruments of Service, BAWA hereby expressly agrees to remove the Firm's name and all references to the Firm and its consultants from the Documents. Any reuse of such instruments of service for other than their Intended purpose will be at BAWA's sole risk. Provided that this Contract is not terminated for cause by BAWA, BAWA shall release any and all claims which BAWA could make arising out of or in connection with any reuse of the documents by BAWA. h. The Firm shall procure and maintain at its sole cost and expense for the duration of the Contract, Insurance against claims for injures to person or damages to property which may arise from or in connection with the performance of the Work hereunder by the Firm, its agents, representatives, volunteers, employees or suboonsuftants. 3 (1) The Firm's insurance coverage shall be primary insurance with respect to BAWA, Its offldals, employees and agents. Any insurance or self-insurance maintained by BAWA, its officials, employees or agents shall be considered In excess of the Firm's Insurance and shall not contribute to ft. Further, the Firm shall include all subconsultants, agents and assigns as additional Insureds under its policy or shall fumish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns 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: (a) Commercial General Liability • General Aggregate: $2,000,000 • Products & Completed Operations Aggregate: $1,000,000 • Personal & Advertising Injury: $1,000,000 • Per Occurrence: $1,000,000 • Fire Damage $50,000 • Coverage shall be at least as broad as ISO CG 00 0110 93 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. (b) Business Automobile Policy • Combined Single Umits: $1,000,000 • Coverage for "Any Auto" (c) Errors and Omissions • Limit: $1,000,000 for this project. • For all architects, engineers, and/or design companies • Clalms -made form is acceptable • Coverage will be in force for one (1) year after construction of the Project is completed. (d) Workers' Compensation • Statutory Limits • Employer's Uablifty $500,000 • Waiver of Subrogation required. (2) The following shall be applicable to all policies of insurance required herein. (a) Insurance carrier for all liability policies must have an A.M. Best Rating of B+ :VIII or better. (b) Only insurance carriers licensed and admitted to do business In the State of Texas will be accepted. (c) Liability policies must be on occurrence form. Errors and Omissions can be on claims -made form. (d) Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return recelpt requested, has been given to BAWA. (e) BAWA, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. 4 (t) Upon request and without cost to BAWA, certified copies of all insurance policies and /or certificates of Insurance shall be furnished to BAWA. {g} Upon request and without cost to BAWA, loss runs (claims listing) of any and /or all insurance coverages shall be furnished to BAWA. (h) All insurance required herein shall be secured and maintained in a company or companies satisfactory to BAWA, and shall be carried in the name of the Firm. The Firm shall provide copies of Insurance policies required hereunder to BAWA on or before the effective date of this Contract. Unless otherwise provided in this Contract, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail, postpaid and registered or certified, and addressed to the party to be notified, with return recelpt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Contract, from and after the expiration of three (3) days after it is so deposited. For the purpose of notice, the addresses of the parties shall be as follows unless properly changed as provided for herein below: For BAWA: For the Firm: BAYTOWN AREA WATER AUTHORITY Attn: General Manager P. O. Box 424 Baytown, Texas 77522 -0424 FAX: 281. 420.6586 MALCOLM PIRNIE, INC. Attn: Mr. Gary Rabelais, P.E. 1700 West Loop South, Suite 1450 Houston, TX 77027 FAX: 713.840 -1207 Each party shall have the right from time to time at any time to change its respective address and each shall have the right to specify a new address, provided that at least fifteen (15) days' written notice is given of such new address to the other party. J. This Contract shall not bestow any rights upon any third party, but rather, shall bind and benefit the Firm and BAWA only. k Notwithstanding anything to the contrary contained in this Contract, BAWA and the Firm hereby agree that no claim or dispute between BAWA and the Firm arising out of or relating to this Contract shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14), or any applicable Slate arbitration statute, including, but not limited to, the Texas General Arbitration Act. provided that In the event that BAWA is subjected to an arbitration proceeding notwithstanding this provision, the Firm consents to be Joined In the arbitration proceeding if the Fimr's presence is required or requested by BAWA for complete relief to be recorded in the arbitration proceeding. 5 No waiver by either party to this Contract of any term or condition of this Contract shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. M. This Contract represents the entire and integrated agreement between BAWA and the Firm in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either whether written or oral, on the subject matter hereof. This Contract may only be amended by written instrument approved and executed by both of the parties. BAWA and the Firm accept and agree to these terms. n. The headings used in this Contract are for general reference only and do not have special significance. o. In the event of any ambiguity in any of the terms of this Contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. P. The officers executing this Contract on behalf of the parties hereby represent that such officers have full authority to execute this Contract and to bind the party he/she represents. Terms and Conditions -This Contract is subject to the provisions titled, "Part IV Terms and Conditions" and attached hereto and incorporated by reference herein. IN WITNESSETH HEREOF, the parties have hereunto set their hands and seals. BAYTOWN AREA WATER AUTHORITY BY: General Manager 6 FIRM: MALCOLM PIRNIE, INC. (Title) PART II PROFESSIONAL ENGINEERING SCOPE OF SERVICES The Firm shall render the following services necessary for the development of the project: SCOPE OF BASIC SERVICES 1. Attend preliminary conferences with BAWA regarding the requirements of the project. 2. Coordinate any necessary surveys of existing rights -of -way, topography, utilities, or other field data required for proper design of the project. Provide consultatlon and advice as to the necessity of BAWA providing or obtaining other services such as auger borings, core borings, soil tests, or other subsurface explorations; laboratory testing and Inspecting of samples or materials; other special consultations. The Firm will review any tests required and act as BAWA's representative In connection with any such services. 3. Prepare a preliminary engineering /architectural study and report on the project in sufficient detail to indicate dearly the problems involved and the alternate solutions available to BAWA, to include preliminary layouts, sketches and cost estimates for the project, and to set forth clearly the FWs recornmendations; to be completed within 14 days of contract execution. 4. Furnish BAWA 3 paper copies and one electronic copy In pdf format of the preliminary report, if applicable (additional copies will be furnished to BAWA at direct cost of reproduction); 5. Furnish BAWA a written monthly status report at least seven (7) days prior to the second regularly scheduled BAWA meeting until the project Is dosed by the Texas Department of Rural Affairs (TDRA). The format for this report shall meet the approval of BAWA's Engineer. 0. Submit detailed drawings and plans /specifications to appropriate regulatory agency(les) and obtain clearance. All submissions will be approved In writing by BAWA's Engineer prior to submission to other regulatory agencies. 7. Prepare bid packet/contract documenWadvertisement for bids. At the time the bid packet Is completed, the Firm shall also furnish to BAWA an updated written Estimate of Probable Costs for the Project. 8. Make 10-day call to confirm prevailing wage decision Issued by TxCDBG. 9. Incorporate any and all wage rate modifications or supersedes via bid addendum (lf applicable). 10. Attend mandatory prebld meeting, Issue addenda as necessary to clarify the project, conduct bid opening, provide a recommendation for award, prepare all necessary minutes as requested by BAWA's Engineer, and assist with bid protests and rebidding. 11. Tabulate, analyze, and review bids for completeness and accuracy. 12. Accomplish Construction Contractor eligibility verification. 13. Conduct pre - construction conference and prepare copy of reports/minutes. 14. Assist BAWA with document preparation necessary to issue Start of Construction Notice to TCDBG and Notice to Proceed to construction contractor. 15. Provide In all proposed construction contracts deductive alternatives where feasible, so that should the lowest responsive base bid for construction exceed the funds available, deductive alternatives can be taken to reduce the bid price. 7 16. Design for access by persons with disabilities to facilities to be used by the public in accordance with Public Law 504. 17. Use BAWA's form for instructions to bidders, general conditions, contract, bid bond, performance bond, payment bond, and maintenance bond that have TxCDBG approval, as required. 18. Make periodic visits, no less than every 30 days during the construction period, to the site to observe the progress and quality of the work and to determine if the work is proceeding in accordance with the Contract. 19. Consult with and advise BAWA during construction; Issue to contractors all Instructions requested by BAWA; and prepare routine change orders if required, at no charge for engineering services to SAWA when the change order Is required to correct errors or omissions by the Firm; provide price analysis for change orders; process change orders approved by BAWA and the project engineer and submit to TxCDBG for approval prior to execution with the construction contractor. 20. Review shop and working drawings furnished by contractors for compliance with design concept and with information given In contract documents (contractors will be responsible for dimensions to be confirmed and correlated at job site). 21. Consider and evaluate suggestions or recommendations which may be submitted by the Contractor to the Finn or BAWA and report them with recommendations for the Firm's and BAWA's final decision. 22. Assist BAWA with the review of all payment requests within 10 days of receipt of signed pay request from the Construction Contractor. 23. Based on the Finn's on -site observations and review of the contractor's applications for payment, determine the amount owed to the contractor In such amounts; such approvals of payment to constitute a representation to BAWA, based on such observations and review, that the work has progressed to the point indicated and that the quality of work is in accordance with the plans, specifications and contract documents. 24. Attend on -site project meetings as and when requested by BAWA's Engineer, prepare minutes of the same, take photos and make reports of progress. 25. Recommend that appropriate retainage be withheld in accordance with V.T.C.S., Goverment Code §§ 2253.001, at seq., from all payments on construction contracts until final acceptance by BAWA and approval by TxCDBG, unless State or local law provides otherwise. 26. Prepare Certificate of Construction Completion and Clean Lien Certificate. A Clean Lien Certificate shall be prepared for each of the Prime Contractor(s) and each of the subcontractor(s). 27. Conduct Interim/final Inspections. 28. Revise contract drawings to show the work as actually constructed, and fumish BAWA with a set of "record drawings" plans. 29. The Finn will provide a copy of the final project record drawing(s) engineering schematic(s), as constructed using funds under this contract. These maps shall be provided in digital format containing the source map data (original vector data) and the graphic data in files on machine readable media, such as compact disc (CD), which are compatible with computer systems owned or readily available to BAWA. The digital copy provided shall not include a digital representation of the engineers seal but the accompanying documentation from the engineer shall include a signed statement of when the map was authorized, that the digital map is a true representation of the original sealed document, and that a printed version with the seal has been provided to a BAWA. In addition. complete documentation as to the content and layout of the data files and the dame of the software package(s) used to generate the data and maps shall be provided to SAWA In written form. SCOPE OF SPECIAL SERVICES 1. Preliminary Evaluation of Project Scope a. Advise as to the necessity of BAWA's providing additional data or services of the types which are not part of Firm's Basic Services, and assist BAWA in obtaining such data and services. b. Identify and evaluate potential solutions available to BAWA; and after consultations with BAWA, recommend to BAWA those solutions, which in Firm's judgment meet BAWA's requirements for the Project. C. Perform or provide the following additional Preliminary Evaluation of Project Scope tasks ordeliverables: 1. Initial facility inspection by Firm. H. Generator load calculations for each site to estimate generator KW size and approximate dimensions and weight. Ill. Preliminary site layouts with natural ground elevation, 100 -year floodplain elevation, and approximate generator location. d. Provide BAWA with necessary documentation to support any changes requiring amendments to the Grant. e. Comply with all changes to the Grant affecting in any way the services to be provided by the Finn. 2. Geotechnical (HVJ Associates). a. Subconsuliant shall perform all geotechnical services for the design phase of the project, which shall include, but not be limited to, auger borings, core borings, soil tests, or other subsurface exploratlons. b. Subconsullant shall perform all geotechnical services for the construction phase of the project, which shall, include, but not be limited to, laboratory testing and inspecting of samples or materials, unless otherwise provided by construction contractor as specified in the construction contract. 3. Surveying Services. These services include any necessary surveys of existing rights -of-way, topography, utilities, or other field data required for proper design of the project. 4. Miscellaneous Reimbursable Expenses. These expenses shall be limited to extemal reproduction costs and extemal delivery expenses. In -house expenses, Including, but not limited to, reproduction, delivery costs, mileage, and travel, shall not be included as miscellaneous reimbursable expenses and shall be deemed already Included within the scope of basic services and will not be billed separately. SUBCONTRACTS No work under this Contract shall be subcontracted by Finn without prior approval. In writing, from BAWA. 9 2. The Firm shall, prior to proceeding with the work, notify BAWA in writing of the name of any subcontractors proposed for the work. including the extent and character of the work to be done by each. 3. If any time during progress of the work, BAWA determines that any subcontractor Is incompetent or undesirable, BAWA will notify the Finn who shall take reasonable and Immediate steps to satisfactorily cure the problem, substitute performance, or cancel such subcontract. Subletting by suboontractors shall be subject to the some regulations. Nothing contained in this Contract shall create any contractual relation between any subcontractor and BAWA. 4. The Firm will include in all contracts and subcontracts of amounts in excess of $100,000 a provis €on which requires compliance with all applicable standards. orders or requirements issued under Section 308 of the Clean Air Act 142 U.S. 1857 (Section 508 of the Clean Water Act (33 U.S.C. 1368d). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR. Part 15), which prohibit the use under non - exempt Federal contracts, grants or loans of facilities Included on the EPA List of Violating Facilities. The provisions shall require reporting of violations to TxCDBG and to the U.S. Environmental Protection Agency Assistant Administrator for Enforcement. 5. The Firm will include In all contracts and subcontracts other than for small purchases (less then $10,000), provisions or conditions which will allow for administrative, contractual or legal remedies in Instances which violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. 8. The Firm will include in all contracts and subcontracts in excess of $10,000 suitable provisions for termination by BAWA including the manner by which it will be affected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the Firm. 7. The Firm will Include in all contracts and subcontracts In excess of $10,000 provisions requiring compliance with the following: > The Finn will not discriminate against any employee or applicant for employment because of race. creed. sex, color, national origin, physical or mental disability, marital status, parenthood, or age. > Executive Order 11248 -Equal Employment Opportunity. > Copeland Anti - Kickback Act. > Davis -Bacon Act -prime contractor contracts In excess of $2,000. > Section 103 and 107 of the Contract Work Hours and Safety Standards Act - contracts in excess of $2,000. > A provision recognizing mandatory standards and policies relating to energy efficiency that are contained in the State energy conservation plan Issued in compliance with the Energy PoQcy and Conservation Act. > Section 3 of the Housing and Urban Development Act of 1989. > Title VI of the Civil Rights Act of 1984 8. The Firm will include in all negotiated contracts and subcontracts a provision which indicates that funds will not be awarded under this contract to any party which Is debarred, suspended, or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Omer 12549 and 24 CFR Part 24. A certification shall be provided and received from each proposed subcontractor under this contract and its principals. 9. The Finn will include In all negotiated contracts and subcontracts a provision to the effect that BAWA, TxCDBG, the Comptroller General of the State of Texas, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the 10 Contractor which are directly pertinent to that specific contract, for the purpose of making audit, examination, excerpts, and transcriptions. 10. The Firm will include in all contracts and subcontracts a requirement that the Contractor maintain all relevant project records for three (3) years after SAWA has made final payment to the Contractor and all other pending matters are closed. STANDARD OF PERFORMANCE AND DEFICIENCIES 1. All services of the Firm and its independent professional associates, consultants and subcontractors will be performed In a professional, reasonable and prudent manner in accordance with generally accepted professional practice. The Firm represents that it has the required skills and capacity to perform work and services to be provided under this Contract. 2. The Firm represents that services provided under this Contract shall be performed within the limits prescribed by BAWA In a manner consistent with that level of care and skill ordinarily exercised by other professional consultants under similar circumstances. 3. Any deficiency in Firm's work and services performed under this contract shall be subject to the provisions of applicable stale and federal law. The Firm shall be responsible for the technical accuracy of its services and documents resulting therefrom, and BAWA shall not be responsible for discovering deficiencies therein. The Firm shall correct such deficiencies without additional compensation. BAWNs approval, acceptance, use of or payment for all or any part of the Firm's services hereunder or of the work itself shall in no way after the Firm's obligations or BAWA's rights under this Contract. BAWA shall notify the Firm in writing of any deficiency and provide an opportunity for mutual investigation and resolution of the problem prior to pursuit of any judicial remedy. In any case, this provision shall in no way limit the judicial remedies available to BAWA under applicable state or federal law. 4. By this Contract, BAWA does not consent to litigation or suit, and BAWA 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 BAWA's sovereign immunity. The Finn assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges BAWA, 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 the Firm's work to be performed hereunder. This release shall apply with respect to the Firm's work regardless of whether said claims, demands, and causes of action are covered In whole or in part by insurance. This release shall survive the termination and /or expiration of this Contract. 11 PART III -- PAYMENT SCHEDULE PROFESSIONAL ENGINEERINGIARCHITECTURAL SERVICES SAWA shall reimburse the Firm for basic engineering services provided upon completion of the following project milestones per the following percentages of the maximum contract amount subject to the limitations in Part I, Section 4: Milestone % of Contract Fee Contract Fee • Approval of Preliminary Engineering Plans and Specifications by BAWA. 20% $48,900 • Approval of Plans and Specifications by Regulatory Agency(ies). 45% $110,025 • Completion of bid advertisement and contract award. 15% $38,875 • Completion of shop and working drawing reviews. 10% $24,450 • Completion of Final Closeout Assessment and submittal of 'As Builts' to BAWA. 5% $12,225 • Completion of final inspection and acceptance by BAWA. 5% $12,225 Total 100% $244,600 SPECIAL SERVICES The fee for all Special Services shall not exceed a total of TWENTY-THREE THOUSAND THREE HUNDRED AND NO /100 DOLLARS ($23,300.00) subject to the limitations in Part I, Section 4. in accordance with the following: 1. The Firm shall be paid upon completion of Preliminary Evaluation of Project Scope the sum of FIVE THOUSAND NO/100 DOLLARS ($5,000.00). 2. The Firm shall be paid upon completion of Geotechnical Services by HVJ Associates the sum of SIX THOUSAND ONE HUNDRED FIFTY AND NO/100 DOLLARS ($8,150.00). 3. The Finn shall be paid upon completion of Surveying Services the sum of THREE THOUSAND FIVE HUNDRED AND NO /100 DOLLARS ($3,500.00). 4. The Firm shall be reimbursed the actual costs of necessary miscellaneous reimbursable expenses to the extent specified in the Scope of Special Services during the design phase based on itemized billing statements from the independent provider plus a 10 percent overhead charge. All fees for miscellaneous reimbursable expenses during the design phase shall not exceed a total of TEN THOUSAND SIX HUNDRED FIFTY AND NO /100 DOLLARS ($10,850.00). S. The payment requests shall be prepared by the Firm with work In progress to substantiate the amounts requested. 6. Any work performed by the Firm prior to the execution of this contract is at the Finn's sole risk and expense. 7. If the Firm, at any time during the term of this Contract, Incurs a debt, as the word is defined in section 2 -882 of the Code of Ordinances of the City of Baytown, it shall immediately notify BAWA's Director of Finance in writing. If BAWA's Director of Finance becomes aware that the Finn has incurred a debt, BAWA's Director of Finance shall Immediately notify the Firm in writing. If the Firm does not pay the debt within 30 days of either such notification, BAWA's 12 Director of Finance may deduct funds In an amount equal to the debt from any payments owed to the Firm under this Contract, and the Finn waives any recourse therefor. 13 PART IV TERMS AND CONDITIONS PROFESSIONAL MANAGEMENT, ENGINEERING AND /OR ARCHITECTURAL SERVICES 1. Termination of Contract for Cause. If, through any cause, the Firm shall fail to fulfill in a timely and proper manner his/her obligations under this Contract, or if the Firm shall violate any of the covenants, agreements, or stipulations of this Contract, BAWA shall thereupon have the right to terminate this Contract by giving written notice to the Firm of such termination and specifying the effective date thereof, at least five days before the effective date of such termination. In such event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Finn under this Contract shall, at the option of BAWA, become its property and the Firm shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. However, no final payment will be made until all work product referenced above and requested by BAWA Is tendered to BAWA. Notwithstanding the above, the Firm shall not be relieved of liability to BAWA for damages sustained by BAWA by virtue of any breach of the Contract by the Firm, and BAWA may withhold any payments to the Finn for the purpose of set-off until such time as the exact amount of damages due BAWA from the Firm is determined. 2. Termination for Convenience of BAWA. BAWA may terminate this Contract at any time by giving at least ten (10) days notice In writing to the Firm. If the Contract is lemminated by BAWA as provided herein, the Firm will be paid for the time provided and expenses incurred up to the termination date. If this Contract is terminated due to the fault of the Firm, Paragraph 1 hereof relative to termination shall apply. 3. Changes. BAWA may, from time to time, request changes In the scope of the services of the Firm to be performed hereunder. Such changes, including any increase or decrease in the amount of the Firth's compensation, which are mutually agreed upon by and between BAWA and the Firm, shall be incorporated In written amendments to this Contract. 4. Personnel. a. The Finn represents that it has, or will secure at his own expense, all personnel required In performing the services under this Contract. Such personnel shall not be employees of or have any contractual relationship with BAWA. b. All of the services required hereunder will be performed by the Finn or under its supervision and all personnel engaged in the work shall be fully qualified and shalt be authorized or permitted under State and local law to perform such services. C. None of the work or services covered by this Contract shall be subcontracted without the prior written approval of BAWA. Any work or services subcontracted hereunder shall be specified by written contract or agreement and shall be subject to each provision of this Contract. 5. Assignability. The Firm shall not assign any interest on this Contract, and shall not transfer any Interest in the same (whether by assignment or novation), without the prior written consent of BAWA thereto; provided, however, that claims for money by the Firm from BAWA under this Contract may be assigned to a bank, trust company, or other financial institution without such approval. Written notice of any such assignment or transfer shall be furnished promptly to BAWA. The Firm may not sell or assign all or part interest In this Contract to another party or parties without the prior express written approval of SAWA's General Manager of such sale or assignment. For any other assignment, BAWA may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of BAWA. 14 6. Reports and Information. The Firm, at such times and In such forms as SAWA may require, shall furnish SAWA such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Contract, the costs and obligations Incurred or to be Incurred in connection therewith, and any other matters covered by this Contract. 7. Records and Audits. The Firm shall insure that SAWA maintains fiscal records and supporting documentation for all expenditures of funds made under this contract in a manner that conforms to OMS Circular A-87, Section 570.490 of the Regulations. and this Contract. Such records must Include data on the racial, ethnic, and gender characteristics of persons who are applicants for, participants in, or beneficiaries of the funds provided under this Contract. SAWA shall retain such records, and any supporting documentation. for the greater of three years from closeout of the Contract or the period required by other applicable laws and regulations. 8. Findinas Confidential. All of the reports, information, data, etc., prepared or assembled by the Finn under this contract are confidential and the Firm agrees that they shall not be made available to any Individual or organization without the prior written approval of SAWA. 9. CoWght. No report, maps, or other documents produced in whole or in part under this Contract all be the subject of an application for copyright by or on behalf of the Firm. 10. Compliance with local laws. The Firm shall comply with all applicable laws, ordinances and codes of the State and local governments, and the Finn shall save SAWA harmless with respect to any damages arising from any tort done to performing any of the work embraced by this Contract. 11. Equal Employment Opportunity. During the performance of this Contract, the Finn agrees as follows: a. The Firm will not discriminate against any employee or applicant for employment because of race, creed, sex, color, handicap or national origin. The Firm will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, sex, color, handicap or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Finn agrees to post in conspicuous places. available to employees and applicants for employment, notices to be provided by SAWA setting forth the provisions of this non - discrimination clause. b. The Firm will, in all solicitation or advertisements for employees placed by or on behalf of the Firm, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, handicap or national original. C. The Firm will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Contract so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. d. The Firm will include the provisions a. through c. In every subcontract or purchase order unless exempted. 12. Civil Rights Act of 1964. Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 15 13. Section 109 of the Housina and Community Development Act of 1974. No person In the United States shall on the ground of race, color, national origin, or sex be excluded from participation In, be denied the benefits of, or be subjected to discrlmination under any program or activity funded In whole or in part with funds made available under this title. 14. "Section 3" CompAance In the Provision of Trainina. Employment and Business Opportunities. a. The work to be performed under this contract is on a project assisted under a program providing direct Federal financial assistance from the Office of Housing and Urban Development and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1988, as amended, 12 U.S.C. 1701 u. Section 3 requires that to the greatest extent feasible opportunities for training and employment be given lower income residents of the project area and contracts for work In connection with the project be awarded to business concerns that are located in, or owned in substantial part by persons residing in the area of the project. b. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth n 24 C.F.R. 235, and all applicable rules and orders of TxCDBG issued thereunder prior to the execution of this Contract. The parties to this Contract certify and agree that they are under no contractual or other disability that would prevent them from complying with these requirements. C. The Finn will include this Section 3 clause In every subcontract for work In connection with the project and will, at the direction of the applicant for or recipient of Federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations Issued by the Secretary of Housing and Urban Development, 24 C.F.R. Part 135. The Firm will not subcontract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 C.F.R. Part 135 and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. 15. Section 503 Handicapped (if $2.500 or Over) Affirmative Action for Handicapped Workers a. The Firm will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. The Firm agrees to take affirmative action to employ, advance in employment and otherwise treat qualified handicapped Individuals without discrimination based upon their physical or mental handicap in all employment practices such as the following: Employment, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, Including apprenticeship. b. The Firm agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor Issued pursuant to the Act. C. In the event of the Firm's non - compliance with the requirements of this clause, actions for non - compliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. d. The Finn will include the provisions of this clause in every subcontract or purchase order of $2,500 or more unless exempted by rules, regulations, or orders of the Secretary issued pursuant to Section 503 of the Act, so that such provisions will be binding upon each subcontractor with respect to any subcontract or purchase order as the Director of 16 the Office of Federal Contract Compliance Programs may direct to enforce such provisions, Including action for non - compliance. 16. Interest of Members of BAWA. No member of the governing body of BAWA and no other officer, employee, or agent of BAWA, who exercises any functions or responsibilities in connection with the planning and carrying out of the program, shall have any personal financial interest, direct or Indirect, In this Contract. And the Firm shall take appropriate steps to assure compliance. 17. Interest of Other Local Public Officials. No member of the goveming body of BAWA and no other public official of such BAWA, who exercises any functions or responsibilities In connection with the planning and carrying out of the program, shall have any personal financial Interest, direct or Indirect, in this Contract; and the Firm shall take appropriate steps to assure compliance. Is. Interest of Firm and Employees, The Firm covenants that he /she presently has no interest and shall not acquire interest, director Indirect, in the study area or any parcels therein or any other Interest which would conflict in any manner or degree with the performance of his/her services hereunder. The Firm further covenants that in the performance of this Contract, no person having any such Interest shall be employed. 17 PART V PROJECT TIME SCHEDULE PROFESSIONAL ENGINEERINGIARCHITECTURAL SERVICES Completion The failure of the Finn to comply with the above - referenced schedule, for any reason including, circumstances beyond its control, shall not be a basis for additional compensation. The Finn expressly understands and agrees that the monies set forth in Part I, Section 4 of this Contract are the only funds which have been authorized for payment in full for the services required herein and that the Firm shall perform all services required under this Contract necessary for final completion and acceptance by the BAWA Board of Directors of the project. 18 Date Notice to Proceed 24- Nov -10 Submit Preliminary Engineering Report 09 -Dec-10 BAWA Review 14- Dec-10 50% Design Submittal 28- Jan -11 SAWA Review 02- Feb-11 90% Design Submittal 04- Mar -11 BAWA Review 09 -Mar -1 i Submit Bid Documents 18- Mar -11 Advertise & Bid 17- Mar -11 Receive Bids 30- Mar -11 Award & Prepare Contracts 29- Apr -11 Construction 26. Oct -11 Inspections & Record Drawings 06- Mar -12 The failure of the Finn to comply with the above - referenced schedule, for any reason including, circumstances beyond its control, shall not be a basis for additional compensation. The Finn expressly understands and agrees that the monies set forth in Part I, Section 4 of this Contract are the only funds which have been authorized for payment in full for the services required herein and that the Firm shall perform all services required under this Contract necessary for final completion and acceptance by the BAWA Board of Directors of the project. 18 CONTRACT PART I GREEMENT THIS AGREEMENT, entered into thi day of , 2010, by and between the BAYTOWN AREA WATER AUTHOR , herei a called "BAWA," and MALCOLM PIRNIE, INC., hereinafter called "Firm." WITNESSETH THAT: WHEREAS, BAWA desires to implement a water treatment plant emergency power improvements project under the general direction of the Texas Department of Rural Affairs' CDBG Disaster Recovery Entitlement Grant Program; and WHEREAS, BAWA desires to engage the Firm to render certain services in connection with its water treatment plant emergency power improvements project; NOW THEREFORE, the parties do mutually agree as follows: 1 Scope of Services Part II, Scope of Services, is hereby incorporated by reference into this Contract. Further, the performance standards relating to water facilities-1a, which is incorporated into the Texas Department of Rural Affairs Contract No. DRS010220, CDBG Disaster Recovery Entitlement Grant Program (the "Grant"), and as hereinafter amended, are incorporated herein by this reference and are included as the Scope of Services required for the project. All services shall be performed in accordance with and meeting all of the requirements of the Grant. 2 Time of Performance. The services of the Firm shall commence on the issuance by BAWA of a written notice to proceed. In any event, all of the services required and performed hereunder shall be completed no later than March 6, 2012. 3 Access to Information. a. Except as provided in subsection b, it is agreed that all information, data, reports and records and maps as are existing, available and necessary for the carrying out of the work outlined above shall be furnished to the Firm by BAWA and its agencies. No charge will be made to for such information and BAWA and its agencies will cooperate with the Firm to facilitate the performance of the work described in the contract. Nothing contained in this section or Contract shall be construed to require BAWA to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of BAWA. b. The Firm understands and agrees that any and all GIS data provided by BAWA and copies of the same (i) are property of BAWA; (ii) shall not be given, sold, or otherwise distributed to other parties in any way; and (iii) will be deleted and/or destroyed at the conclusion of this Contract. Upon completion of this Contract and prior to final payment by BAWA for the same, the Firm shall provide a sworn statement from an appropriate officer of the Firm to the Director of Information Services Department, certifying that the data has been deleted from all computers systems on which it was used or placed and that all other copies have been destroyed. The Firm understands that certain data sets are licensed to BAWA and distribution to parties not authorized is a direct violation of the licensing agreement. Failure to comply with any applicable license agreement or the terms hereof will result in irreparable damage to BAWA for which it may seek legal and equitable relief, including attorney's fees. 1 4 Compensation and Method of Payment. a. The maximum amount of compensation and reimbursement for all services to be paid hereunder shall not exceed (i) fifteen percent (15%) of the amount bid by the successful bidder of the Project or (ii) TWO HUNDRED SIXTY-SEVEN THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS ($267,800.00), whichever is less. Payment to the Firm for basic engineering services shall be in the amount of TWO HUNDRED FORTY- FOUR THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($244,500.00) and to be paid based on satisfactory completion of identified milestones in Part III "Payment Schedule" of this Contract. Payment to the Firm for Special Services shall be in the amount of TWENTY-THREE THOUSAND THREE HUNDRED AND NO/100 DOLLARS ($23,300.00) and to be paid per method described in Part III and invoiced no more frequently than once monthly. b. BAWA has no BAWA funds for the services to be rendered under this Contract. It is expressly agreed and understood that this Contract is predicated and conditioned upon BAWA receiving funds for the purpose of paying the entire obligation of BAWA under this Contract from funds to be received from the Grant. The Firm agrees that BAWA will not be responsible for the payment for services if the Grant funds referenced hereinabove are not available for the payment of the same. 5 Indemnification. —The Firm shall comply with the requirements of all applicable laws, rules and regulations. and shall exonerate, and hold harmless BAWA and its agency members from and against them, and shall assume full responsibility for payments of Federal, State and local taxes on contributions imposed or required under the Social Security, worker's compensation and income tax laws. THE FIRM AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND BAWA, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS "BAWA") 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 CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND BAWA, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT BAWA FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS CONTRACT. 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 CONSULTANT'S PARTIES. IN THE EVENT 2 THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST BAWA FROM WHICH BAWA IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO BAWA. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND/OR EXPIRATION OF THIS CONTRACT. 6. Miscellaneous Provisions a. This Contract shall be construed under and in accordance with the laws of the State of Texas, and all obligations of the parties created hereunder are performable in Harris County, Texas. b. This Contract shall be binding upon and insure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns where permitted by this Contract. c. In any case one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision thereof and this Contract shall not be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. d. If any action at law or in equity is necessary to enforce or interpret the terms of this Contract, the prevailing party shall be entitled to reasonable attorney's fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled. e. This Contract may be amended by mutual agreement of the parties hereto and a writing to be attached to and incorporated into this Contract. f. The Firm shall perform all services under this Contract with the care and skill ordinarily used by members of the Firm's profession practicing under the same or similar circumstances,time and locality. g. Upon execution of this Contract, the Firm grants to BAWA an ownership interest in the Instruments of Service. The Firm shall obtain similar interests from BAWA and the Firm's consultants consistent with this Contract. The Firm shall be required to tender to BAWA all Instruments of Service upon expiration or earlier termination of this Contract. With such ownership interest, it is expressly understood by the parties hereto that BAWA may use the Instruments of Service for any purposes which BAWA sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a condition to BAWA's use of the Instruments of Service, BAWA hereby expressly agrees to remove the Firm's name and all references to the Firm and its consultants from the Documents. Any reuse of such instruments of service for other than their intended purpose will be at BAWA's sole risk. Provided that this Contract is not terminated for cause by BAWA, BAWA shall release any and all claims which BAWA could make arising out of or in connection with any reuse of the documents by BAWA. h. The Firm shall procure and maintain at its sole cost and expense for the duration of the Contract, insurance against claims for injures to person or damages to property which may arise from or in connection with the performance of the Work hereunder by the Firm, its agents, representatives, volunteers, employees or subconsultants. 3 (1) The Firm's insurance coverage shall be primary insurance with respect to BAWA, its officials, employees and agents. Any insurance or self-insurance maintained by BAWA, its officials, employees or agents shall be considered in excess of the Firm's insurance and shall not contribute to it. Further, the Firm shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns 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: (a) Commercial General Liability • General Aggregate: $2,000,000 • Products &Completed Operations Aggregate: $1,000,000 • Personal &Advertising Injury: $1,000,000 • Per Occurrence: $1,000,000 • Fire Damage $50,000 • Coverage shall be at least as broad as ISO CG 00 01 10 93 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. (b) Business Automobile Policy • Combined Single Limits: $1,000,000 • Coverage for"Any Auto" (c) Errors and Omissions • Limit: $1,000,000 for this project. • For all architects, engineers, and/or design companies • Claims-made form is acceptable • Coverage will be in force for one (1) year after construction of the Project is completed. (d) Workers' Compensation • Statutory Limits • Employer's Liability $500,000 • Waiver of Subrogation required. (2) The following shall be applicable to all policies of insurance required herein. (a) Insurance carrier for all liability policies must have an A.M. Best Rating of B+:Vlll or better. (b) Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. (c) Liability policies must be on occurrence form. Errors and Omissions can be on claims-made form. (d) Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to BAWA. (e) BAWA, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. 4 (f) Upon request and without cost to BAWA, certified copies of all insurance policies and/or certificates of insurance shall be furnished to BAWA. (g) Upon request and without cost to BAWA, loss runs (claims listing) of any and/or all insurance coverages shall be furnished to BAWA. (h) All insurance required herein shall be secured and maintained in a company or companies satisfactory to BAWA, and shall be carried in the name of the Firm. The Firm shall provide copies of insurance policies required hereunder to BAWA on or before the effective date of this Contract. Unless otherwise provided in this Contract, any notice provided for or permitted to be given must be in writing and delivered in person or by depositing same in the United States mail, postpaid and registered or certified, and addressed to the party to be notified, with return receipt requested, or by delivering the same to an officer of such party. Notice deposited in the mail as described above shall be conclusively deemed to be effective, unless otherwise stated in this Contract, from and after the expiration of three (3) days after it is so deposited. For the purpose of notice, the addresses of the parties shall be as follows unless properly changed as provided for herein below: For BAWA: BAYTOWN AREA WATER AUTHORITY Attn: General Manager P. O. Box 424 Baytown, Texas 77522-0424 FAX: 281-420-6586 For the Firm: MALCOLM PIRNIE, INC. Attn: Mr. Gary Rabalais, P.E. 1700 West Loop South, Suite 1450 Houston, TX 77027 FAX: 713- 840-1207 Each party shall have the right from time to time at any time to change its respective address and each shall have the right to specify a new address, provided that at least fifteen (15)days'written notice is given of such new address to the other party. j. This Contract shall not bestow any rights upon any third party, but rather, shall bind and benefit the Firm and BAWA only. k. Notwithstanding anything to the contrary contained in this Contract, BAWA and the Firm hereby agree that no claim or dispute between BAWA and the Firm arising out of or relating to this Contract shall be decided by any arbitration proceeding including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1-14), or any applicable State arbitration statute, including, but not limited to, the Texas General Arbitration Act, provided that in the event that BAWA is subjected to an arbitration proceeding notwithstanding this provision, the Firm consents to be joined in the arbitration proceeding if the Firm's presence is required or requested by BAWA for complete relief to be recorded in the arbitration proceeding. 5 I. No waiver by either party to this Contract of any term or condition of this Contract shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. m. This Contract represents the entire and integrated agreement between BAWA and the Firm in regard to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either whether written or oral, on the subject matter hereof. This Contract may only be amended by written instrument approved and executed by both of the parties. BAWA and the Firm accept and agree to these terms. n. The headings used in this Contract are for general reference only and do not have special significance. o. In the event of any ambiguity in any of the terms of this Contract, it shall not be construed for or against any party hereto on the basis that such party did or did not author the same. p. The officers executing this Contract on behalf of the parties hereby represent that such officers have full authority to execute this Contract and to bind the party he/she represents. 8. Terms and Conditions -This Contract is subject to the provisions titled, "Part IV Terms and Conditions" and attached hereto and incorporated by reference herein. IN WITNESSETH HEREOF, the parties have hereunto set their hands and seals. BAYTO A rTER-AUTHORITY FIRM: MALCOLM PIRNIE, INC. 6 )) , . --- BY: BY. General Ma er (Title) 6 k PART II PROFESSIONAL ENGINEERING SCOPE OF SERVICES The Firm shall render the following services necessary for the development of the project: SCOPE OF BASIC SERVICES 1. Attend preliminary conferences with BAWA regarding the requirements of the project. 2. Coordinate any necessary surveys of existing rights-of-way, topography, utilities, or other field data required for proper design of the project. Provide consultation and advice as to the necessity of BAWA providing or obtaining other services such as auger borings, core borings, soil tests, or other subsurface explorations; laboratory testing and inspecting of samples or materials; other special consultations. The Firm will review any tests required and act as BAWA's representative in connection with any such services. 3. Prepare a preliminary engineering/architectural study and report on the project in sufficient detail to indicate clearly the problems involved and the alternate solutions available to BAWA, to include preliminary layouts, sketches and cost estimates for the project, and to set forth clearly the Firm's recommendations; to be completed within 14 days of contract execution. 4. Furnish BAWA 3 paper copies and one electronic copy in pdf format of the preliminary report, if applicable (additional copies will be furnished to BAWA at direct cost of reproduction); 5. Furnish BAWA a written monthly status report at least seven (7) days prior to the second regularly scheduled BAWA meeting until the project is closed by the Texas Department of Rural Affairs (TDRA). The format for this report shall meet the approval of BAWA's Engineer. 6. Submit detailed drawings and plans/specifications to appropriate regulatory agency(ies) and obtain clearance. All submissions will be approved in writing by BAWA's Engineer prior to submission to other regulatory agencies. 7. Prepare bid packet/contract documents/advertisement for bids. At the time the bid packet is completed, the Firm shall also furnish to BAWA an updated written Estimate of Probable Costs for the Project. 8. Make 10-day call to confirm prevailing wage decision issued by TxCDBG. 9. Incorporate any and all wage rate modifications or supersedes via bid addendum (if applicable). 10. Attend mandatory prebid meeting, issue addenda as necessary to clarify the project, conduct bid opening, provide a recommendation for award, prepare all necessary minutes as requested by BAWA's Engineer, and assist with bid protests and rebidding. 11. Tabulate, analyze, and review bids for completeness and accuracy. 12. Accomplish Construction Contractor eligibility verification. 13. Conduct pre-construction conference and prepare copy of reports/minutes. 14. Assist BAWA with document preparation necessary to issue Start of Construction Notice to TCDBG and Notice to Proceed to construction contractor. 15. Provide in all proposed construction contracts deductive alternatives where feasible, so that should the lowest responsive base bid for construction exceed the funds available, deductive alternatives can be taken to reduce the bid price. 7 16. Design for access by persons with disabilities to facilities to be used by the public in accordance with Public Law 504. 17. Use BAWA's form for instructions to bidders, general conditions, contract, bid bond, performance bond, payment bond, and maintenance bond that have TxCDBG approval, as required. 18. Make periodic visits, no less than every 30 days during the construction period, to the site to observe the progress and quality of the work and to determine if the work is proceeding in accordance with the Contract. 19. Consult with and advise BAWA during construction; issue to contractors all instructions requested by BAWA; and prepare routine change orders if required, at no charge for engineering services to BAWA when the change order is required to correct errors or omissions by the Firm; provide price analysis for change orders; process change orders approved by BAWA and the project engineer and submit to TxCDBG for approval prior to execution with the construction contractor. 20. Review shop and working drawings furnished by contractors for compliance with design concept and with information given in contract documents (contractors will be responsible for dimensions to be confirmed and correlated at job site). 21. Consider and evaluate suggestions or recommendations which may be submitted by the Contractor to the Firm or BAWA and report them with recommendations for the Firm's and BAWA's final decision. 22. Assist BAWA with the review of all payment requests within 10 days of receipt of signed pay request from the Construction Contractor. 23. Based on the Firm's on-site observations and review of the contractor's applications for payment, determine the amount owed to the contractor in such amounts; such approvals of payment to constitute a representation to BAWA, based on such observations and review, that the work has progressed to the point indicated and that the quality of work is in accordance with the plans, specifications and contract documents. 24. Attend on-site project meetings as and when requested by BAWA's Engineer, prepare minutes of the same, take photos and make reports of progress. 25. Recommend that appropriate retainage be withheld in accordance with V.T.C.S., Government Code §§ 2253.001, et seq., from all payments on construction contracts until final acceptance by BAWA and approval by TxCDBG, unless State or local law provides otherwise. 26. Prepare Certificate of Construction Completion and Clean Lien Certificate. A Clean Lien Certificate shall be prepared for each of the Prime Contractor(s) and each of the subcontractor(s). 27. Conduct interim/final inspections. 28. Revise contract drawings to show the work as actually constructed, and furnish BAWA with a set of"record drawings" plans. 29. The Firm will provide a copy of the final project record drawing(s) engineering schematic(s), as constructed using funds under this contract. These maps shall be provided in digital format containing the source map data (original vector data) and the graphic data in files on machine readable media, such as compact disc (CD), which are compatible with computer systems owned or readily available to BAWA. The digital copy provided shall not include a digital representation of the engineer's seal but the accompanying documentation from the engineer shall include a signed statement of when the map was authorized, that the digital map is a true representation of the original sealed document, and that a printed version with the seal has been provided to 8 BAWA. In addition, complete documentation as to the content and layout of the data files and the name of the software package(s) used to generate the data and maps shall be provided to BAWA in written form. SCOPE OF SPECIAL SERVICES 1. Preliminary Evaluation of Project Scope a. Advise as to the necessity of BAWA's providing additional data or services of the types which are not part of Firm's Basic Services, and assist BAWA in obtaining such data and services. b. Identify and evaluate potential solutions available to BAWA; and after consultations with BAWA, recommend to BAWA those solutions, which in Firm's judgment meet BAWA's requirements for the Project. c. Perform or provide the following additional Preliminary Evaluation of Project Scope tasks ordeliverables: Initial facility inspection by Firm. ii. Generator load calculations for each site to estimate generator KW size and approximate dimensions and weight. iii. Preliminary site layouts with natural ground elevation, 100-year floodplain elevation, and approximate generator location. d. Provide BAWA with necessary documentation to support any changes requiring amendments to the Grant. e. Comply with all changes to the Grant affecting in any way the services to be provided by the Firm. 2. Geotechnical (HVJ Associates). a. Subconsultant shall perform all geotechnical services for the design phase of the project, which shall include, but not be limited to, auger borings, core borings, soil tests, or other subsurface explorations. b. Subconsultant shall perform all geotechnical services for the construction phase of the project, which shall, include, but not be limited to, laboratory testing and inspecting of samples or materials, unless otherwise provided by construction contractor as specified in the construction contract. 3. Surveying Services. These services include any necessary surveys of existing rights-of-way, topography, utilities, or other field data required for proper design of the project. 4. Miscellaneous Reimbursable Expenses. These expenses shall be limited to external reproduction costs and external delivery expenses. In-house expenses, including, but not limited to, reproduction, delivery costs, mileage, and travel, shall not be included as miscellaneous reimbursable expenses and shall be deemed already included within the scope of basic services and will not be billed separately. SUBCONTRACTS 1. No work under this Contract shall be subcontracted by Firm without prior approval. in writing, from BAWA. 9 2. The Firm shall, prior to proceeding with the work, notify BAWA in writing of the name of any subcontractors proposed for the work. including the extent and character of the work to be done by each. 3. If any time during progress of the work, BAWA determines that any subcontractor is incompetent or undesirable, BAWA will notify the Firm who shall take reasonable and immediate steps to satisfactorily cure the problem, substitute performance, or cancel such subcontract. Subletting by subcontractors shall be subject to the same regulations. Nothing contained in this Contract shall create any contractual relation between any subcontractor and BAWA. 4. The Firm will include in all contracts and subcontracts of amounts in excess of $100,000 a provision which requires compliance with all applicable standards. orders or requirements issued under Section 306 of the Clean Air Act [42 U.S. 1857 (Section 508 of the Clean Water Act (33 U.S.C. 1368d). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR. Part 15), which prohibit the use under non-exempt Federal contracts, grants or loans of facilities included on the EPA List of Violating Facilities. The provisions shall require reporting of violations to TxCDBG and to the U.S. Environmental Protection Agency Assistant Administrator for Enforcement. 5. The Firm will include in all contracts and subcontracts other than for small purchases (less than $10,000), provisions or conditions which will allow for administrative, contractual or legal remedies in instances which violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. 6. The Firm will include in all contracts and subcontracts in excess of$10,000 suitable provisions for termination by BAWA including the manner by which it will be affected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the Firm. 7. The Firm will include in all contracts and subcontracts in excess of$10,000 provisions requiring compliance with the following: The Firm will not discriminate against any employee or applicant for employment because of race. creed. sex, color, national origin, physical or mental disability, marital status, parenthood, or age. Executive Order 11246 -Equal Employment Opportunity. r Copeland Anti-Kickback Act. r Davis-Bacon Act-prime contractor contracts in excess of$2,000. • Section 103 and 107 of the Contract Work Hours and Safety Standards Act-contracts in excess of$2,000. • A provision recognizing mandatory standards and policies relating to energy efficiency that are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act. • Section 3 of the Housing and Urban Development Act of 1969. • Title VI of the Civil Rights Act of 1964 8. The Firm will include in all negotiated contracts and subcontracts a provision which indicates that funds will not be awarded under this contract to any party which is debarred, suspended, or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549 and 24 CFR Part 24. A certification shall be provided and received from each proposed subcontractor under this contract and its principals. 9. The Firm will include in all negotiated contracts and subcontracts a provision to the effect that BAWA, TxCDBG, the Comptroller General of the State of Texas, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the 10 Contractor which are directly pertinent to that specific contract, for the purpose of making audit, examination, excerpts, and transcriptions. 10. The Firm will include in all contracts and subcontracts a requirement that the Contractor maintain all relevant project records for three (3) years after BAWA has made final payment to the Contractor and all other pending matters are closed. STANDARD OF PERFORMANCE AND DEFICIENCIES 1. All services of the Firm and its independent professional associates, consultants and subcontractors will be performed in a professional, reasonable and prudent manner in accordance with generally accepted professional practice. The Firm represents that it has the required skills and capacity to perform work and services to be provided under this Contract. 2. The Firm represents that services provided under this Contract shall be performed within the limits prescribed by BAWA in a manner consistent with that level of care and skill ordinarily exercised by other professional consultants under similar circumstances. 3. Any deficiency in Firm's work and services performed under this contract shall be subject to the provisions of applicable state and federal law. The Firm shall be responsible for the technical accuracy of its services and documents resulting therefrom, and BAWA shall not be responsible for discovering deficiencies therein. The Firm shall correct such deficiencies without additional compensation. BAWA's approval, acceptance, use of or payment for all or any part of the Firm's services hereunder or of the work itself shall in no way alter the Firm's obligations or BAWA's rights under this Contract. BAWA shall notify the Firm in writing of any deficiency and provide an opportunity for mutual investigation and resolution of the problem prior to pursuit of any judicial remedy. In any case, this provision shall in no way limit the judicial remedies available to BAWA under applicable state or federal law. 4. By this Contract, BAWA does not consent to litigation or suit,and BAWA 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 BAWA's sovereign immunity. The Firm assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges BAWA, 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 the Firm's work to be performed hereunder. This release shall apply with respect to the Firm's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. This release shall survive the termination and/or expiration of this Contract. 11 PART III --PAYMENT SCHEDULE PROFESSIONAL ENGINEERING/ARCHITECTURAL SERVICES BAWA shall reimburse the Firm for basic engineering services provided upon completion of the following project milestones per the following percentages of the maximum contract amount subject to the limitations in Part I, Section 4: Milestone % of Contract Contract Fee Fee •Approval of Preliminary Engineering Plans and Specifications by 20% $48,900 BAWA. •Approval of Plans and Specifications by Regulatory Agency(ies). 45% $110,025 • Completion of bid advertisement and contract award. 15% $36,675 • Completion of shop and working drawing reviews. 10% $24,450 • Completion of Final Closeout Assessment and submittal of"As Builts" to BAWA. 5% $12,225 • Completion of final inspection and acceptance by BAWA. 5% $12,225 Total 100% $244,500 SPECIAL SERVICES The fee for all Special Services shall not exceed a total of TWENTY-THREE THOUSAND THREE HUNDRED AND NO/100 DOLLARS ($23,300.00) subject to the limitations in Part I, Section 4. in accordance with the following: 1. The Firm shall be paid upon completion of Preliminary Evaluation of Project Scope the sum of FIVE THOUSAND NO/100 DOLLARS ($5,000.00). 2. The Firm shall be paid upon completion of Geotechnical Services by HVJ Associates the sum of SIX THOUSAND ONE HUNDRED FIFTY AND NO/100 DOLLARS ($6,150.00). 3. The Firm shall be paid upon completion of Surveying Services the sum of THREE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($3,500.00). 4. The Firm shall be reimbursed the actual costs of necessary miscellaneous reimbursable expenses to the extent specified in the Scope of Special Services during the design phase based on itemized billing statements from the independent provider plus a 10 percent overhead charge. All fees for miscellaneous reimbursable expenses during the design phase shall not exceed a total of TEN THOUSAND SIX HUNDRED FIFTY AND NO/100 DOLLARS ($10,650.00). 5. The payment requests shall be prepared by the Firm with work in progress to substantiate the amounts requested. 6. Any work performed by the Firm prior to the execution of this contract is at the Firm's sole risk and expense. 7. If the Firm, at any time during the term of this Contract, 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 BAWA's Director of Finance in writing. If BAWA's Director of Finance becomes aware that the Firm has incurred a debt, BAWA's Director of Finance shall immediately notify the Firm in writing. If the Firm does not pay the debt within 30 days of either such notification, BAWA's 12 Director of Finance may deduct funds in an amount equal to the debt from any payments owed to the Firm under this Contract, and the Firm waives any recourse therefor. 13 PART IV TERMS AND CONDITIONS PROFESSIONAL MANAGEMENT, ENGINEERING AND/OR ARCHITECTURAL SERVICES 1. Termination of Contract for Cause. If, through any cause, the Firm shall fail to fulfill in a timely and proper manner his/her obligations under this Contract, or if the Firm shall violate any of the covenants, agreements, or stipulations of this Contract, BAWA shall thereupon have the right to terminate this Contract by giving written notice to the Firm of such termination and specifying the effective date thereof, at least five days before the effective date of such termination. In such event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs and reports prepared by the Firm under this Contract shall, at the option of BAWA, become its property and the Firm shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder. However, no final payment will be made until all work product referenced above and requested by BAWA is tendered to BAWA. Notwithstanding the above, the Firm shall not be relieved of liability to BAWA for damages sustained by BAWA by virtue of any breach of the Contract by the Firm, and BAWA may withhold any payments to the Firm for the purpose of set-off until such time as the exact amount of damages due BAWA from the Firm is determined. 2. Termination for Convenience of BAWA. BAWA may terminate this Contract at any time by giving at least ten (10) days notice in writing to the Firm. If the Contract is terminated by BAWA as provided herein, the Firm will be paid for the time provided and expenses incurred up to the termination date. If this Contract is terminated due to the fault of the Firm, Paragraph 1 hereof relative to termination shall apply. 3. Changes. BAWA may, from time to time, request changes in the scope of the services of the Firm to be performed hereunder. Such changes, including any increase or decrease in the amount of the Firm's compensation, which are mutually agreed upon by and between BAWA and the Firm, shall be incorporated in written amendments to this Contract. 4. Personnel. a. The Firm represents that it has, or will secure at his own expense, all personnel required in performing the services under this Contract. Such personnel shall not be employees of or have any contractual relationship with BAWA. b. All of the services required hereunder will be performed by the Firm or under its supervision and all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under State and local law to perform such services. c. None of the work or services covered by this Contract shall be subcontracted without the prior written approval of BAWA. Any work or services subcontracted hereunder shall be specified by written contract or agreement and shall be subject to each provision of this Contract. 5. Assignability. The Firm shall not assign any interest on this Contract, and shall not transfer any interest in the same (whether by assignment or novation), without the prior written consent of BAWA thereto; provided, however, that claims for money by the Firm from BAWA under this Contract may be assigned to a bank, trust company, or other financial institution without such approval. Written notice of any such assignment or transfer shall be furnished promptly to BAWA. The Firm may not sell or assign all or part interest in this Contract to another party or parties without the prior express written approval of BAWA's General Manager of such sale or assignment. For any other assignment, BAWA may require any records or financial statements necessary in its opinion to ensure such sale or assignment will be in the best interest of BAWA. 14 6. Reports and Information. The Firm, at such times and in such forms as BAWA may require, shall furnish BAWA such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Contract, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Contract. 7. Records and Audits. The Firm shall insure that BAWA maintains fiscal records and supporting documentation for all expenditures of funds made under this contract in a manner that conforms to OMS Circular A-87, Section 570.490 of the Regulations. and this Contract. Such records must include data on the racial, ethnic, and gender characteristics of persons who are applicants for, participants in, or beneficiaries of the funds provided under this Contract. BAWA shall retain such records, and any supporting documentation. for the greater of three years from closeout of the Contract or the period required by other applicable laws and regulations. 8. Findings Confidential. All of the reports, information, data, etc., prepared or assembled by the Firm under this contract are confidential and the Firm agrees that they shall not be made available to any individual or organization without the prior written approval of BAWA. 9. Copyright. No report, maps, or other documents produced in whole or in part under this Contract shall be the subject of an application for copyright by or on behalf of the Firm. 10. Compliance with Local Laws. The Firm shall comply with all applicable laws, ordinances and codes of the State and local governments, and the Firm shall save BAWA harmless with respect to any damages arising from any tort done in performing any of the work embraced by this Contract. 11. Equal Employment Opportunity. During the performance of this Contract, the Firm agrees as follows: a. The Firm will not discriminate against any employee or applicant for employment because of race, creed, sex, color, handicap or national origin. The Firm will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, sex, color, handicap or national origin. Such action shall include, but not be limited to, the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Firm agrees to post in conspicuous places. available to employees and applicants for employment, notices to be provided by BAWA setting forth the provisions of this non-discrimination clause. b. The Firm will, in all solicitation or advertisements for employees placed by or on behalf of the Firm, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, handicap or national original. c. The Firm will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Contract so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. d. The Firm will include the provisions a. through c. in every subcontract or purchase order unless exempted. 12. Civil Rights Act of 1964. Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 15 13. Section 109 of the Housing and Community Development Act of 1974. No person in the United States shall on the ground of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title. 14. "Section 3" Compliance in the Provision of Training, Employment and Business Opportunities. a. The work to be performed under this contract is on a project assisted under a program providing direct Federal financial assistance from the Office of Housing and Urban Development and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. Section 3 requires that to the greatest extent feasible opportunities for training and employment be given lower income residents of the project area and contracts for work in connection with the project be awarded to business concerns that are located in, or owned in substantial part by persons residing in the area of the project. b. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth n 24 C.F.R. 235, and all applicable rules and orders of TxCDBG issued thereunder prior to the execution of this Contract. The parties to this Contract certify and agree that they are under no contractual or other disability that would prevent them from complying with these requirements. c. The Firm will include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the applicant for or recipient of Federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, 24 C.F.R. Part 135. The Firm will not subcontract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 C.F.R. Part 135 and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. 15. Section 503 Handicapped (if$2.500 or Over)Affirmative Action for Handicapped Workers a. The Firm will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. The Firm agrees to take affirmative action to employ, advance in employment and otherwise treat qualified handicapped individuals without discrimination based upon their physical or mental handicap in all employment practices such as the following: Employment, upgrading, demotion or transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. b. The Firm agrees to comply with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. c. In the event of the Firm's non-compliance with the requirements of this clause, actions for non-compliance may be taken in accordance with the rules, regulations, and relevant orders of the Secretary of Labor issued pursuant to the Act. d. The Firm will include the provisions of this clause in every subcontract or purchase order of $2,500 or more unless exempted by rules, regulations, or orders of the Secretary issued pursuant to Section 503 of the Act, so that such provisions will be binding upon each subcontractor with respect to any subcontract or purchase order as the Director of 16 the Office of Federal Contract Compliance Programs may direct to enforce such provisions, including action for non-compliance. 16. Interest of Members of BAWA. No member of the governing body of BAWA and no other officer, employee, or agent of BAWA, who exercises any functions or responsibilities in connection with the planning and carrying out of the program, shall have any personal financial interest, direct or indirect, in this Contract. And the Firm shall take appropriate steps to assure compliance. 17. Interest of Other Local Public Officials. No member of the governing body of BAWA and no other public official of such BAWA, who exercises any functions or responsibilities in connection with the planning and carrying out of the program, shall have any personal financial interest, direct or indirect, in this Contract; and the Firm shall take appropriate steps to assure compliance. 18. Interest of Firm and Employees. The Firm covenants that he/she presently has no interest and shall not acquire interest, director indirect, in the study area or any parcels therein or any other interest which would conflict in any manner or degree with the performance of his/her services hereunder. The Firm further covenants that in the performance of this Contract, no person having any such interest shall be employed. 17 PARTV PROJECT TIME SCHEDULE PROFESSIONAL ENGINEERING/ARCHITECTURAL SERVICES Completion Date Notice to Proceed 24-Nov-10 Submit Preliminary Engineering Report 09-Dec-10 BAWA Review 14-Dec-10 50% Design Submittal 28-Jan-11 BAWA Review 02-Feb-11 90% Design Submittal 04-Mar-11 BAWA Review 09-Mar-11 Submit Bid Documents 16-Mar-11 Advertise & Bid 17-Mar-11 Receive Bids 30-Mar-11 Award & Prepare Contracts 29-Apr-11 Construction 26-Oct-11 Inspections & Record Drawings 06-Mar-12 The failure of the Firm to comply with the above-referenced schedule, for any reason including, circumstances beyond its control, shall not be a basis for additional compensation. The Firm expressly understands and agrees that the monies set forth in Part I, Section 4 of this Contract are the only funds which have been authorized for payment in full for the services required herein and that the Firm shall perform all services required under this Contract necessary for final completion and acceptance by the BAWA Board of Directors of the project. 18 ACOROr DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 11/08/2010 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT:If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must be endorsed.If SUBROGATION IS WAIVED,subject to the ,.: terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the t� certificate holder in lieu of such endorsement(s). .c PRODUCER CONTACT d NAME: AOn Risk Services South, Inc. PHONE FAX u Franklin TN Office (AIC.No.Eat): (666) 283-7122 (NC.No.): (847) 953-5390 I 501 Corporate Centre Drive E-MAIL C Suite ennoccc. Frank1l00TN 37067 USA PRODUCER 570000005571 CUSTOMER ID#: INSURER(S)AFFORDING COVERAGE NAIC# • INSURED INSURER A: Greenwi ch Insurance Company 22322 Malcolm Pirnie, Inc. INSURER B: XL Specialty insurance Co 37885 44 S. Broadway 15th & 16th Floors INSURER C: White Plains NY 10602 USA INSURER D: INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:570040765718 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. Limits shown are as requested INSR ADDL SUBR POLICY EFF POLICY EXP LTR TYPE OF INSURANCE INSR NND POLICY NUMBER ((MM/DD/YYYY1M/MDD/YYYY)) LIMITS A GENERAL LIABILITY GEC001076108 01/01/2010 01/01/2011 EACH OCCURRENCE $1,000,000 General Liability DAMAGE TO RENTED X COMMERCIAL GENERAL LIABILITY PREMISES(Ea occurrence) S1,000,000 CLAIMS-MADE I OCCUR MED EXP(Any one person) $10,000 PERSONAL BADV INJURY $1,000,000 °r GENERAL AGGREGATE $2,000,000 in GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG S2,000,000 a —I POLICY n PECOT- piLoc O B AUTOMOBILE LIABILITY AEC001075808 01/01/2010 01/01/2011 COMBINED SINGLE LIMIT to Auto (AOS) (Ea accident) $1,000,000 X ANY AUTO BODILY INJURY(Per person) 0 ALL OWNED AUTOS Z BODILY INJURY(Per accident) •w SCHEDULED AUTOS PROPERTY DAMAGE RI X HIRED AUTOS (Per accident) r X NON OWNED AUTOS G7 U 1 UMBRELLA LIAB OCCUR EACH OCCURRENCE EXCESS LIAB CLAIMS-MADE AGGREGATE DEDUCTIBLE RETENTION B WORKERS COMPENSA'LIABILITY COMPENSATION AND RWD943528401 01/01/2010 01/01/2011 X TWORY STAT 0TH Y/N workers Compensation ER ANY PROPRIETOR/PARTNER/EXECUTIVE E.L.EACH ACCIDENT S1,000,000 OFFICER/MEMBER EXCLUDED? Y N/A (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE S1,000,000— If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT S1,000,000 ait DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES(Attach ACORD 101,Additional Remarks Schedule,II more space is required) .40 z S Project: wastewater Emergency Power Improvements. City of Baytown, its officers, agents and Employees are included as "- Additional Insured with respect to General Liability and Auto Liability policies where required by written contract. A waiver 21 of Subrogation is granted in favor of Additional Insured on the General Liability, Auto Liability and Workers Compensation Ali CERTIFICATE HOLDER CANCELLATION --�F r— SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. RI City of Baytown AUTHORIZED REPRESENTATIVE P.O. Box 424 Baytown Tx 77522 USA gg._ y/!Jor i ©1988-2009 ACORD CORPORATION.All rights reserved. ACORD 25(2009/09) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: 570000005571 ----^"1 a LOC#: ACCPRO ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Aon Risk Services South, Inc. Malcolm Pirnie, Inc. POLICY NUMBER See Certificate Number: 570040765718 CARRIER NAIC CODE See Certificate Number: 570040765718 EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: ACORD 25 FORM TITLE: Certificate of Liability Insurance Additional Description of Operations/Locations/Vehicles: policies where required by written contract. The insurance coverage provided shall be primary and any other insurance carried by the Additional Insured shall be excess insurance. Contractual Liability for Insured Contracts is included, subject to the policy terms, conditions, and exclusions. Cancellation Provision shown herein is subject to shorter or longer time periods depending on the jurisdiction of, and reason for, the cancellation. ACORD 101 (2008/01) ©2008 ACORD CORPORATION.All rights reserved. The ACORD name and logo are registered marks of ACORD ' Ra.. CERTIFICATE OF LIABILITY INSURANCE DATE11//DD/Y 0 ) 02/20 PRODUCER Aon Risk Services South, Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY Franklin TN Office AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS 501 Corporate Centre Drive CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE Suite 300 COVERAGE AFFORDED BY THE POLICIES BELOW. Franklin TN 37067 USA PHONE-(866) 283-7122 FAX-(847) 953-5390 INSURERS AFFORDING COVERAGE N.%IC-u INSURED INSURERA: Lexington Insurance Company 19437 •• Malcolm Pirnie, Inc. i 44 S. Broadway INSURER B: w 15th & 16th Floors a White Plains NY 10602 USA INsuRERc: -0 ., INSURER D: i, INSURER E: b COVERAGES SIR applies per terms and conditions of the policy x THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AI'rURDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LIMITS SHOWN ARE AS REQUESTED INSR ADD'L LTR INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS DATE(MM/DD/YYYY)DATE(MM/DD/YYYYL ERAL LIABILITY EACH OCCURRENCE COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED PREMISES(Ea occurrence) CLAIMS MADE 0 O CUR MED EXP(Any one person) PERSONAL&.ADV INJURY co v GENERAL AGGREGATE O rN GEN'L AGGREGATE LIMIT APPLIES PER: O El POLICY ❑ PRO- ❑ PRODUCTS-COMP/OP AGG o 0 JECT N. LOC O in AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT p — ANY AUTO (Ea accident) Z ao ALL OWNED AUTOS 40 ea _ BODILY INJURY B u (Per person) SCHEDULED AUTOS .. . HIRED AUTOS 0 BODILY INJURY j NON OWNED AUTOS (Per accident) PROPERTY DAMAGE '—' (Per accident) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT 8 ANY AUTO OTHER THAN EA ACC AUTO ONLY: AGG EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE 0 OCCUR ❑ CLAIMS MADE AGGREGATE RDEDUCTIBLE RETENTION 'I�•rr C WORKERS COMPENSATION AND fTORY LIIMITS ATU-I IERH EMPLOYERS'LIABILITY E.L.EACH ACCIDENT ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? E.L.DISEASE-EA EMPLOYEE - (Mandatory In NH) r If yes,describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT -ail A OTHER 015448990 06/01/2010 06/01/2011 Each Claim $1,000,000 Prof & Poll Liab Annual Aggregate S1,000,000" Archit&Eng Prof ;an a._. L DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Project: Wastewater Emergency Power Improvements. A Waiver of Subrogation is granted in favor of City of Baytown on the Professional Liability policy where required by written contract. For Professional Liability coverage, the '-• Aggregate Limit is the total insurance available for claims presented within the policy period for all operations CERTIFICATE HOLDER CANCELLATION City of Baytown SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION ..a a P.O. Box 424 DATE THEREOF,THE ISSUING INSURER WILL ENDEAVOR TO MAIL Baytown TX 77 522 USA 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, .-1 BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE , �iwwinns e-9L.4n. k ACORD 25(2009/01) C1988-2009 ACORD CORPORATION.All rights reser\ed— The ACORD name and logo are registered narks of ACORD Attachment to ACORD Certificate for Malcolm Pi rni e, Inc. The terms,conditions and provisions noted below are hereby attached to the captioned certificate as additional description of the coverage afforded by the insurer(s).This attachment does not contain all terms,conditions,coverages or exclusions contained in the policy. INSURER INSURED Malcolm Pirnie, Inc. INSURER 44 S. Broadway 15th & 16th Floors INSURER White Plains NY 10602 USA INSURER INSURER ADDITIONAL POLICIES If a policy below does not include limit information,refer to the corresponding policy on the ACORD certificate form for policy limits. INSR ADD•L POLICY NUMBER POLICY POLICY LTR INSRD TYPE OF INSURANCE POLICY DESCRIPTIONEFFECTIVE EXPIRATION LIMITS DATE DATE OTHER Claims-Made LiProfessional Liabil NIand Contractors EPollution Liability DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS of the insured. The Limit will be reduced by payments of indemnity and expense. Cancellation Provision shown herein is subject to shorter or longer time periods depending on the jurisdiction of, and reason for, the cancellation. Certificate No: 570040701481