Ordinance No. 11,5420l'WINANC'l.',`,'N0. It �542
AN ORDINANCE OF THE cra COUNCIL OF ITIF, CITY BAYT0WNTl`.XAS,
AUTHORIZIN(i AND DIRFk,"I'ING Tiff', CITY N1ANAGF*,l( TO FXF'(JJTI,-, AND
TtiE CITY CLERK 11) AITE51''I"O A PROFESSIONAL SFRVIC1,,,S AGRf,`,EN,IFN'f
WITH DANNENBAUM ENCGINr`J,',RING CORPORATION FOR,rHU', FINAL I)l`,SI(JN
OF CRAIGN/lONT ESTATES 5R)RM SF,'WJ,',R. REN/11-,`,I)IATION PROJI",('717;
AUTHORIZIN(i PAYMU.NT13)"'I'LIF, CITY OFBAYTOWN IN AN ANMUNTNOT
"TO FXCF*,[`T) ONU, HONDRED NINETY-Tl-lRFi,,.', '11-10USAND 1AW', HUNDRED
FOURTEl','N AND 10/100 DOLUMS ($19311110); N/IAKING 0111f".R PROVISIONS
RELATEWTHEREM AM PROV IDING FOR TI ll,,,'REOU`
* * * * * * * * * * * * * * *4 * * * * * * * 0 * * * * * * * * * * * * * * * * * * * * * * * * * * * * 4; * * * * * * * * * * * * 4, * * 4, * * * 4 4 41 * � * * * * * * � *
BE IT ORDAMED BY °I CITY COUNCIL OF TIH! crr), OF BAN"IMM IMAS:
Section 1: 'That the C?y Council of the City of 13aaytomn, Qxaq hereby mahodzes and
Weis the City Mdniger tca cxccWc and We City Clerk to attest to a ProWssiomal Services Agreement with
DannenNIUM CoMomtion flor the find design or me saignuml; EstawN Swnn Sewer
Remccliation Prqject. A cqq of the agrcernent is aunhed ho-em, maked ExhMA "AN and nmde as part
hereofl'orall intents and purposes.
Section I That we coy Midi of we Coy ail" 13-aylown atithorizes payment to
L)annenbaurn [�ngkueHng CAirpmadon in an arnount not to exceed ()N[-', I ]UNDRI,-,J) 'NINI,,, I'Y- I'l IREl",
TI-IOUSAND FIVI FlUNDREl) FCHJR'1'1',[.,.N AND 10/100 DOLLARS ($193,514A()) 1'or engineering,
services in accordance with the agmenient aUthorized in Section I herehiabove.
Secdon 3: 11M the City Minager is hereby granted gownd authority to approvea decrease
or an increase in coos by ThG*NTY-FlVF, It IOUSAND AND INO/I 00 DOLLARS ($25,000.00) or less,
provided that the aniount authorized in Secthn 2 hereof may not be inewasal by niore than twenty-five
percent (25%).
1U,",M), and PASSED by we aVinnalive voq4the City couticil conic Chy of
Baylown, dais [lie 130 day of January, 2011 , 11
. . . . . . . . . . . . P a . . . . . ... . .
(o,
SCI I, City Clurk
()Vl,,,A) ASTO FORM:
DONCARLOSI M
E"Z" S—R,E C"'it'-y'-
�� R�� --I ��
V Kimm'J des'( 'ji), Connol 0 d1imme""'"air I SAO" mr�, 131 d(s,
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
T1 11S AGREEMENT effective as of the_ day of January. 2011 ('Effective Date ").
Between
City of Baytown ( "OWNER")
and
DANNENBAUM ENGINEERING CORPORATION ( "CONSULTANT")
OWNER intends to contract to provide professional engineering design and consulting services related to the final
design Craigmont Estates Storm Sewer Remediation Project ( "Project "). which project shall be based upon
Alternate I of the Preliminary Engineering Report for the Project completed in April 2010.
OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I of 12
TABLE OF CONTENTS
Pnee
ARTICLE l - SERVICES OF CONSULTANT ...... ....... .................................................................... ............................... 3
1.01 Scope ................................................................................................................................ ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES ................................................................................. ............................... 3
2.01 General ............................................»................................................................................. ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ............................................................................................................................... ............................... 3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE4 - PAYMENTS TO CONSULTANT ................................................................................ ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT ...... ............................... 3
4.02 Other Provisions Concerning Payments..... ...................................................................................................... 3
ARTICLE 5 - OPINIONS OF COST............. ...................................»................................................. ......................... —.. 4
5.01 Opinions of Probable Construction Cost ......................................................................... ............................... 4
5.02 Designing to Construction Cost Limit .............................................................................. ............................... 4
5.03 Opinions of Total Project Costs ..... _ ................................................................................. ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................. ............................... 4
6.01 Standards of Performance .„ ...... .. .... » ................................................................................. ............................... 4
6.02 Authorized Project Representatives .............»....»..................».......................................... ............................... 5
6.03 Design without Construction Phase Services.................................................................... ............................... 5
6.04 Use of Documents ............. ............. » ................................................................................. ............................... 6
6.05 Insurance ............................. ............ .. ............. .... ...... ..... ....................................................................... .......... 6
6.06 Termination .................................................»........»...»...................................................... ............................... 6
6.07 Controlling Law ....... ...................... »..........»..............»..................................................... ............................... 7
6.08 Successors, Assigns, and Beneficiaries ............................................................................. ............................... 7
6.09 Dispute Resolution ........ ....................................................................................... ............................... 7
6.101lazanious Environmental Condition ...................».......................................................... ............................... 7
6.11 Allocation of Risks ............................................................................................................ ............................... 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severability ................................»................................................. ...............................
6.15 Waiver ..................................................»..............»............................................................ ............................... 8
6.161 Icadings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS ............................................................................................................ ............................... 8
7.01 Defined Temu ......................................................»........................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... l 1
8.01 Exhibits Included .............................................................................................................. ............................... l
8.02 Total Agreement .... ....... ...._...._. ...... » ... ... ........... ... .............. .......... ........................ ............................... ...... l
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 12
ARTICLE 1- SERVICES OF CONSULTANT
1.01 Scope
A. CONSULTANT shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. (modified) Upon issuance of a notice to proceed by
the OWNER, CONSULTANT is authorized to begin Basic
Services as set forth in Exhibit A.
C. (Deleted).
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) CONSULTANT's services and
compensation under this Agreement have been agreed to for
the design of the Project together with other services specified
in Exhibit A. CONSULTANT's obligation to render services
hereunder will be for whatever period necessary for the final
completion of said services.
B. (Deleted).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted)
B. (Modified) if CONSULTANT's services arc
delayed or suspended in whole or in part by OWNER,
CONSULTANT may be entitled to equitable adjustment of
rates and amounts of compensation provided for elsewhere in
this Agreement to reflect, reasonable costs incurred by
CONSULTANT in connection with, among other things,
such delay or suspension and reactivation and the fact that the
time for performance under this Agreement has been revised.
unless such delay or suspension is caused in whole or in part
by the CONSULTANT, its of iicers, agents, or employees. If
CONSULTANT causes or contributes to the delay or
suspension, CONSULTANT shall have no right to seek
additional compensation.
ARTICLE 4 - PAYMENTS TO CONSULTANT
4.01 Methods of Payment for Services and
Reimbursable Expenses of CONSULTANT
A. For Basic Services. OWNER shall pay
CONSULTANT for Basic Services performed or famished
under Exhibit A, Part 1, as set forth in Exhibit C.
B. For Additional Smices. OWNER shall pay
CONSULTANT for Additional Services performed or
fitmished under Exhibit A, Part 2. as set forth in Exhibit C.
C. (Modified) For Reintbunable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.0, OWNER shall pay CONSULTANT for Reimbursable
Expenses incurred by CONSULTANT and
CONSULTANT's Consultants as set forth in Exhibit C.
However, all expenses associated with meals and lodging
must be approved in writing by OWNER prior to
CONSULTANT incurring any expense associated therewith.
otherwise, the parties hereto agree and understand that
OWNER shall not be liable and CONSULTANT shall not
make a claim against OWNER for any such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or email
by CONSULTANT, unless otherwise agreed.
CONSULTANT shall supply detailed back -up information
along with each invoice in order for the OWNER to
effectively evaluate the fees and charges. The amount billed
in each invoice will be calculated as set forth in Exhibit C.
B. (Modified) Payment of hivoices. Invoices are due
and payable within 30 days alter the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due CONSULTANT for services and expenses
within 30 days after receipt of CONSULTANT's invoice and
the required backup documentation therefor, the amounts due
CONSULTANT will accrue interest at the rate set forth in
Section 2251.025 of the Texas Government Code (or the
maximum rate of interest permitted by law, if less) after the
30th day. CONSULTANT may after giving seven days'
written notice to OWNER suspend services under this
Agreement until CONSULTANT has been paid in full all
amounts due for services, expenses, and other related charges.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 12
However, it is expressly understood and agreed that
CONSULTANT will not charge any interest or penalty as set
forth herein on any portion of an invoice that is disputed
and/or withheld in accordance with paragraph 4.02 and that
CONSULTANT will not suspend services under the
agreement on account of a disputed invoice or on account of
monies withheld. All payments will be credited first to
principal and then to interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Pa)ments Upon Termination. In the event of any
termination under section 6.06, CONSULTANT will be
entitled to invoice OWNER and will be paid in accordance
with Exhibit C for all services performed or fumished and all
Reimbursable Expenses incurred through the effective date of
termination provided all instruments of service have been
tendered to the OWNER..
2. (Deleted)
E. (Modified) Records of CONSULTANT's Costs.
Records of CONSULTANT's costs pertinent to
CONSULTANT's compensation under this Agreement shall
be kept in accordance with generally accepted accounting
practices. Copies of such records will be made available to
OWNER upon request at no cost to OWNER
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
CONSULTANT's services or other costs in connection with
this Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to CONSULTANT's estimated total
compensation.
G. (Added) Indebtedness. If CONSULTANT, at any
time during the term of this agreement, incurs a debt, as the
word is defined in section 2-662 of the Code of Ordinances
of the City of Baytown. it shall immediately notify the
OWNER's Director of Finance in writing. if the OWNER's
Director of Finance becomes aware that the
CONSULTANT has incurred a debt, the OWNER's
Director of Finance shall immediately notify the
CONSULTANT in writing. If the CONSULTANT does
not pay the debt within 30 days of either such notification.
the OWNER's Director of Finance may deduct funds in an
amount equal to the debt from any payments owed to the
CONSULTANT under this Agreement, and the
CONSULTANT waives any recourse therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. CONSULTANT's opinions of probable
Construction Cost provided for herein are to be made on the
basis of CONSULTANT's experience and qualifications and
represent CONSULTANT's best judgment as an experienced
and qualified professional generally familiar with the
industry. However, since CONSULTANT has no control
over the cost of labor, materials, equipment, or services
fumished by others, or over the Contractor's methods of
determining prices, or over competitive bidding or market
conditions, CONSULTANT cannot and does not guarantee
that proposals, bids, or actual Construction Cost will not vary
from opinions of probable Construction Cost prepared by
CONSULTANT. if OWNER wishes greater assurance as to
probable Construction Cost, OWNER shall employ an
independent cost estimator as provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. (Deleted).
S.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or furnished by
CONSULTANT under this Agreement will be the care and
skill ordinarily used by members of CONSULTANT's
profession practicing under similar circumstances at the same
time and in the same locality.
B. (Modified) CONSULTANT shall be responsible for
the technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. CONSULTANT shall
correct such deficiencies without additional compensation
except to the extent such action is directly attributable to
deficiencies in OWNER - furnished information upon which
CONSULTANT is authorized to rely as provided in Section
6.01.13.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 12
C. CONSULTANT shall perform or furnish
professional engineering and related services in all phases of
the Project to which this Agreement applies.
CONSULTANT shall serve as OWNER's prime professional
f'or the Project. CONSULTANT may employ such
CONSULTANT's Consultants as CONSULTANT deems
necessary to assist in the performance or furnishing of the
services. CONSULTANT shall not be required to employ
any CONSULTANT's Consultant unacceptable to
CONSULTANT.
D. CONSULTANT and OWNER shall comply with
applicable Laws or Regulations and OWNER- mandated
standards. This Agreement is based on these requirements as
of its Effective Date. Changes to these requirements after the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
CONSULTANT's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
CONSULTANT may rely upon, the accuracy and
completeness of all requirements, programs, instructions,
reports, data, and other information furnished by OWNER to
CONSULTANT pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER.
CONSULTANT may use such requirements, reports, data,
and information in performing or furnishing services under
this Agreement.
F. OWNER shall snake decisions and carry out its other
responsibilities in a timely mariner and shall bear all costs
incident thereto so as not to delay the services of
CONSULTANT.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify CONSULTANT of any
variations from the language indicated in Exhibit E. "Notice
of Acceptability of Work," or of any other notice or
certification that CONSULTANT will be requested to provide
to OWNER or third parties in connection with the Project.
OWNER and CONSULTANT shall reach agreement on the
terns of any such requested notice or certification, and
OWNER shall authorize such Additional Services as are
necessary to enable CONSULTANT to provide the notices or
certifications requested.
H. (Modified) CONSULTANT shall not be required to
sign any documents, no matter by whom requested, that
would result in CONSULTANT's having to certify,
guarantee or warrant the existence of conditions whose
existence CONSULTANT cannot ascertain; provided, that
CONSULTANT has exercised due diligence and was not
otherwise required to certify, guarantee or warrant the
existence of such conditions.
1. During the Construction Phase, CONSULTANT
shall not supervise, direct, or have control over Contractor's
work, nor shall CONSULTANT have authority over or
responsibility for the means, methods, techniques, sequences,
or procedures of construction selected by Contractor, for
safety precautions and programs incident to the Contractor's
work in progress, nor for any failure of Contractor to comply
with Laws and Regulations applicable to Contractor's
famishing and performing the Work.
I (Modified) CONSULTANT neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
CONSULTANT from liability for any such failure about
which CONSULTANT knew or should have known existed
in the exercise of CONSULTANT's services under this
Agreement.
K. (Modified) CONSULTANT shall not be responsible
for the acts or omissions of any Contractor(s), subcontractor
or supplier, or of any of the Contractor's agents or employees
or any other persons (except CONSULTANT's own
employees and its consultants for which it is legally liable) at
the Site or otherwise furnishing or performing any of the
Contractor's work; or for any decision made on
interpretations or clarifications of the Contract Documents
given by OWNER without consultation and advice of
CONSULTANT.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, CONSULTANT and OWNER shall designate
specific individuals to act as CONSULTANT's and
OWNER's representatives with respect to the services to be
performed or furnished by CONSULTANT and
responsibilities of OWNER under this Agreement. Such
individuals shall have authority to transmit instructions,
receive information. and render decisions relative to the
Project on behalf of each respective party.
6.03 Design without Construction Phase Services
(Deleted)
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 12
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
CONSULTANT grants to the OWNER an ownership interest
in the Instruments of Service. The CONSULTANT shall
obtain similar interests from the OWNER and the
CONSULTANT's consultants consistent with this
Agreement. Within seven days of any termination or
expiration of this Agreement, the CONSULTANT shall be
required to tender to OWNER all Instruments of Service;
provided OWNER has paid all monies, excluding any
disputed amount, due and owing to CONSULTANT in
accordance with this Agreement. With such ownership
interest, it is expressly understood by the parties hereto that
the OWNER may use the Instruments of Service for any
purposes which the OWNER sees fit, including, but not
limited lo, subsequent construction, reconstruction, alteration,
and/or repairs of the Project. As a condition to the OWNER's
use of the Instruments of Service. the OWNER hereby
expressly agrees to remove the CONSULTANT's name and
all references to the CONSULTANT, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the
CONSULTANT, its officers, and employees and sub.
consultants, as well as their successors and assigns.
B. (Modified) Copies of OWNER - furnished data that
may be relied upon by CONSULTANT am limited to the
printed copies that are delivered to CONSULTANT pursuant
to Exhibit B unless otherwise expressly stated or
communicated by OWNER. Files in electronic media format
of text, data, graphics, or of other types that are fumished by
OWNER to CONSULTANT are only for convenience of
CONSULTANT. Any conclusion or information obtained or
derived from such electronic files will be at the user's sole
risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the CONSULTANT.
Files in electronic media format of text, data, graphics, or of
other types that are furnished by CONSULTANT to OWNER
are only for convenience of OWNER. Any conclusion or
information obtained or derived from such electronic files
will be at the user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving party
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60 -day acceptance period.
CONSULTANT shall not be responsible to maintain
documents stored in electronic media format after acceptance
by OWNER.
E. When transferring documents in electronic media
format, CONSULTANT makes no representations as to long.
term compatibility. usability, or readability of documents
resulting from the use of software application packages,
operating systems, or computer hardware differing from those
used by CONSULTANT at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
CONSULTANT from any liability associated solely with the
reuse of the Documents.
G. if there is a discrepancy between the electronic files
and the hard copies, the hand copies govern.
11. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
CONSULTANT to further compensation at rates to be agrcc:d
upon by OWNER and CONSULTANT.
6.05 Insurance
A. CONSULTANT shall procure and maintain
insurance as set forth in Exhibit G. "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any tithe, OWNER may request that
CONSULTANT, at OWNER's sole expense, provide
additional insurance coverage, increased limits, or revised
deductibles that are more protective than those specified in
Exhibit G. If so requested by OWNER, with the concurrence
of CONSULTANT, and if commercially available,
CONSULTANT shall obtain and shall require
CONSULTANT's Consultants to obtain such additional
insurance coverage. different limits, or revised deductibles for
such periods of time as requested by OWNER, and Exhibit G
will be supplemented to incorporate these requirements.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 12
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause.
a. (Modified) By either party upon 30 days
written notice in the event of failure by the other
party to perform in accordance with the terns hereof
through no fault of the terminating pony; or
b. By CONSULTANT upon seven days
written notice if CONSULTANT is being requested
by OWNER to furnish or perform services contrary
to CONSULTANT's responsibility as a licensed
professional.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof; provided, however, that if
and to the extent such substantial failure cannot be
reasonably cured within such 30 day period, and if
such party has diligently attempted to cure the same
and thereafter continues diligently to cure the same
then the cure period provided for herein shall extend
up to, but in no case more than 60 days after the date
of receipt of the notice.
2. For coiruvnience by OWNER effective upon the
receipt of notice by CONSULTANT.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the low of the
sate in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and CONSULTANT each is hereby bound
and the partners, successors, executors, administrators and
legal representatives of OWNER and CONSULTANT (and
to the extent permitted by paragraph 6.08.B the assigns of
OWNER and CONSULTANT) are hereby bound to the other
party to this Agreement and to the partners, successors,
executors, administrators and legal representatives (and said
assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
B. Neither OWNER nor CONSULTANT may assign.
sublet, or transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless specifically
stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by
OWNER or CONSULTANT to any Contractor.
Contractor's subcontractor, supplier, other individual or
entity. or to any surety for or employee of any of them.
2. All duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and CONSULTANT and
not for the benefit of any other party. The OWNER
agrees that the substance of the provisions of this
paragraph 6.08.0 shall appear in the Contract
Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to CONSULTANT ttat to the
best of its knowledge a Hazardous Environmental Condition
does not exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to CONSULTANT the existence of
all Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Ilazardous Environmental
Condition is encountered or alleged. CONSULTANT shall
have the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
CONSULTANT's scope of services does not include any
services related to a I lazardous Environmental Condition. In
the event CONSULTANT or any other party encounters a
Hazardous Environmental Condition, CONSULTANT may,
at its option and without liability for consequential or any
other damages, suspend performance of services on the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 12
portion of the Project affected thereby until OWNER: (i)
retains appropriate specialist consultant(s) or contractor(s) to
identify and, as appropriate, abate, remediate, or remove the
Hazardous Environmental Condition; and (ii) warrants that
the Site is in full compliance with applicable Laws and
Regulations.
E. OWNER acknowledges that CONSULTANT is
performing professional services for OWNER and that
CONSULTANT is not and shall not be required to become an
"arranger," "operator," "generator," or "transporter" of
hazardous substances, as defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of
1990 (CERCLA), which are or may be encountered at or near
the Site in connection with CONSULTANT's activities under
this Agreement.
F. If CONSULTANT's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
CONSULTANTs terminating this Agreement for cause on 30
days notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K.
6.12 Notices
A. (Modified) Any notice required under this
Agreement will be in writing, addressed to the appropriate
party at its address on the signature page and given
personally, or by registered or certified mail postage prepaid,
or by a commercial courier service. Additionally, notices
may be given via facsimile or by electronic mail if such notice
is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severabillty
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and CONSULTANT,
who agree that the Agreement shall be reformed to replace
such stricken provision or pan thereof with a valid and
enforceable provision that comes as close as possible to
expressing the intention of the stricken provision.
6.15 Waiver
A. Nan- cnforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters.
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof-
1. Addenda — Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or change
the Bidding Documents.
2. Additional Services -•The services to be performed
for or furnished to OWNER by CONSULTANT in
accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement- -This "Standard Form of Agreement
between OWNER and CONSULTANT for Professional
Services," including those Exhibits listed in Article 8 hereof.
4. Application for Payment —The form acceptable to
CONSULTANT which is to be used by Contractor in
requesting progress or final payments for the completion of its
Work and which is to be accompanied by such supporting
documentation as is required by the Contract Documents.
5. Asbestos --Any material that contains more than one
percent asbestos and is friable or is releasing asbestos fibers
into the air above current action levels established by the
United States Occupational Safety and Health Administration.
6. Basic Services --The services to be performed for or
furnished to OWNER by CONSULTANT in accordance with
Exhibit A, Pan 1, of this Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 12
7. Bid- -The offer or proposal of the bidder submitted
on the prescribed form setting forth the prices for the Work to
be performed.
8. Bidding Documents —The advertisement or invitation
to Bid, instructions to bidders, the Bid form and attachments,
the Bid bond, if any, the proposed Contract Documents, and
all Addenda, if any.
9. Grange Order —A document recommended by
CONSULTANT, which is signed by Contractor and OWNER
to authorize an addition, deletion or revision in the Work, or
an adjustment in the Contract Price or the Contract Times,
issued on or after the Effective Date of the Construction
Agreement.
10. Construction Agreement- -The written instrument
which is evidence of the agreement, contained in the Contract
Documents, between OWNER and Contractor covering the
Wank
11. Construction Contract —The entire and integrated
written agreement between the OWNER and Contractor
concerning the Work.
12. Construction Cost —The cost to OWNER of those
portions of the entire Project designed or specified by
CONSULTANT. Construction Cost does not include costs of
services of CONSULTANT or other design professionals and
consultants, cost of land, rights -of -way, or compensation for
damages to properties, or OWNER's costs for legal,
accounting, insurance counseling or auditing services, or
interest and financing charges incurred in connection with the
Project, or the cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement.
Construction Cost is one of the items comprising Total
Project Costs.
13. (Modified) Contract Documents— Documents that
establish the rights and obligations of the parties engaged in
construction and include the Construction Agreement
between OWNER and Contractor and all documents
referenced therein, Addenda (which pertain to the Contract
Documents), Contractor's Bid (including documentation
accompanying the Bid and any post -Bid documentation
submitted prior to the notice of award) when attached as an
exhibit to the Construction Agreement, the notice to proceed,
the bonds, appropriate certifications, insurance documents
the General Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders, Work
Change Directives, Field Orders, and CONSULTANT's
written interpretations and clarifications issued on or after the
Effective Date of the Construction Agreement. Approved
Shop Drawings and the reports and drawings of subsurface
and physical conditions are not Contract Documents.
14. Contract Price —The moneys payable by OWNER to
Contractor for completion of the Work in accordance with the
Contract Documents and as stated in the Construction
Agreement.
15. Contract rimes —The numbers of days or the dates
stated in the Construction Agreement to: (i) achieve Final
Completion, and (ii) complete the Work so that it is ready for
final payment as evidenced by CONSULTANT's written
recommendation of final payment.
16. Contractor—An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period —The time after Final Completion
during which Contractor must correct, at no cost to OWNER.
any Defective Work, normally one year after the date of Final
Completion or such longer period of time as may be
prescribed by Laws or Regulations or by the terms of any
applicable special guarantee or specific provision of the
Contract Documents.
18. Defective —An adjective which, when modifying the
word Work, refers to Work that is unsatisfactory, faulty, or
deficient, in that it does not conform to the Contract
Documents, or does not meet the requirements of any
inspection, reference standard, test, or approval referred to in
the Contract Documents, or has been damaged prior to
CONSULTANT's recommendation of final payment.
19. Documents—Data, reports, Drawings, Specifications,
Record Drawings, and other deliverables, whether in printed
or electronic media format, provided or furnished in
appropriate phases by CONSULTANT to OWNER pursuant
to this Agreement.
20. Dtmvings —That part of the Contract Documents
prepared or approved by CONSULTANT which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not Drawings
as so defined.
2 1. Effective Date of rite Construction Agreement --The
date indicated in the Construction Agreement on which it
becomes effective, but if no such date is indicated, it means
the date on which the Construction Agreement is signed and
delivered by the last of the two parties to sign and deliver.
22. Effective Date of the Agreement- -The date indicated
in this Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 12
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
23. CONSULTANT's Consultants— Individuals or
entities having a contract with CONSULTANT to furnish
services with respect to this Project as CONSULTANT's
independent professional associates, consultants,
subcontractors, or vendors. The tern CONSULTANT
includes CONSULTANT's Consultants.
24. Field Order --A written order issued by
CONSULTANT which directs minor changes in the Work
but which does not involve a change in the Contract Price or
the Contract Times.
25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted. all closeout documents
have been executed and approved by the OWNER, and the
Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and procedures
that govem the Work to be performed or furnished by
Contractor with respect to the Project.
27. lla:ardoas Environmental Condition --The presence
at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste,
or Radioactive Materials in such quantities or circumstances
that may present a substantial danger to persons or property
exposed thereto in connection with the Work.
28. 11a ardoas Waite —The term Hazardous Waste shall
have the meaning provided in Section 1004 of the Solid
Waste Disposal Act (42 USC Section 6903) as amended from
time to time.
29. Lairs and Regulations. Laws or Regulations —Any
and all applicable laws, rules, regulations, ordinances, codes,
standards, and orders of any and all governmental bodies,
agencies, authorities, and courts having jurisdiction.
30. PCB's— Polychlorinated biphenyls.
31. Petroleum— Petroleum, including crude oil or any
traction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute), such as oil, petroleum, fuel
oil. oil sludge. oil refuse, gasoline, kerosene, and oil mixed
with other non- Hazardous Waste and crude oils.
32. Radioactive Materials— Source, special nuclear, or
byproduct material as defined by the Atomic Energy Act of
1954 (42 USC Section 2011 et seq.) as amended from time to
time.
33. Record Drmvings --The Drawings as issued for
construction on which the CONSULTANT, upon completion
of the Work, has shown changes due to Addenda or Change
Orders and other information which CONSULTANT
considers significant based on record documents furnished by
Contractor to CONSULTANT and which were annotated by
Contractor to show changes made during construction.
34. Reimbursable Expenses—The expenses incurred
directly by CONSULTANT in connection with the
performing or furnishing of Basic and Additional Services for
the Project for which OWNER shall pay CONSULTANT as
indicated in Exhibit C.
35. Resident Project Representative --The authorized
representative of CONSULTANT, if any. assigned to assist
CONSULTANT at the Site during the Construction Phase.
The Resident Project Representative will be
CONSULTANT's agent or employee and under
CONSULTANT's supervision. As used herein, the term
Resident Project Representative includes any assistants of
Resident Project Representative agreed to by OWNER. The
duties and responsibilities of the Resident Project
Representative are as set forth in Exhibit D.
36. Samples -- Physical examples of materials,
equipment, or workmanship that are representative of some
portion of the Work and which establish the standards by
which such portion of the Work will be judged.
37. Shop Drmvings --All drawings, diagrams.
illustrations, schedules, and other data or information which
are specifically prepared or assembled by or for Contractor
and submitted by Contractor to CONSULTANT to illustrate
some portion of the Work.
38. Sire - -Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which the
Work is to be performed, rights -of -way and easements for
access thereto, and such other lands furnished by OWNER
which are designated for use of Contractor.
39. Specifications --That part of the Contract Documents
consisting of written technical descriptions of materials,
equipment, systems, standards, and workmanship as applied
to the Work and certain administrative details applicable
thereto.
40. Substantial Completion --The time at which the
Work (or a specified part thereof) has progressed to the point
where, in the opinion of CONSULTANT, the Work (or a
specified part thereof) is sufficiently complete, in accordance
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 12
with the Contract Documents, so that the Work (or a specified
part thereof) can be utilized for the purposes for which it is
intended. The terms "substantially complete" and
"substantially completed" as applied to all or part of the Work
refer to Substantial Completion thereon
a 1. Supplementary Conditions —That part of the Contract
Documents which amends or supplements the General
Conditions.
42. (Modified) Total Project Cosix —The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of CONSULTANT or other design
professionals and consultants, cost of land, rights -of -way,
compensation for damages to properties, OWNER's costs for
legal, accounting, insurance counseling or auditing services,
interest and financing charges incurred in connection with the
Project, and the cost of other services to be provided by others
to OWNER pursuant to Exhibit B of this Agreement.
43. 111ork The entire completed construction or the
various separately idctttifnable parts thereof required to be
provided under the Contract Documents with respect to this
Project. Work includes and is the result of performing or
furnishing labor, services, and documentation necessary to
produce such construction and furnishing, installing, and
incorporating all materials and all equipment into such
construction, all as required by the Contract Documents.
44. Mork Change Directive --A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the CONSULTANT, ordering an
addition, deletion, or revision in the Work, or responding to
differing or unforeseen subsurface or physical conditions
under which the Work is to be performed or to emergencies.
A Work Change Directive will not change the Contract Price
or the Contract Times but is evidence that the parties expect
that the change directed or documented by a Work Change
Directive will be incorporated in a subsequently issued
Change Order following negotiations by the parties as to its
effect, if any, on the Contract Price or Contract Times.
45. Written Amendment --A written amendment of the
Contract Documents signed by OWNER and Contractor on or
after the Effective Date of the Construction Agreement and
normally dealing with the non - engineering or non - technical
rather than strictly construction - related aspects of the Contract
Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.011 Exhibits Included
A. Exhibit A, "CONSULTANT's Services," consisting
of three (3) pages.
B. Exhibit B, "OWNER's Responsibilities;' consisting
of two (2) pages.
C. Exhibit C. "Payments to CONSULTANT for
Services and Reimbursable Expenses," consisting of two (2)
pages.
D. Exhibit D. "Duties. Responsibilities and Limitations
of Authority of Resident Project Representative, " is not used.
E. Exhibit E. "Notice of Acceptability of Work," is not
used.
F. Exhibit F, "Construction Cost Limit." is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
I. Exhibit 1, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages I to 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
CONSULTANT and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 12
IN WITNESS \VIIEREOF, Ate parties hereto have executed this Agreement, the EMctive Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
Signature:
Printed Name: Garrison C. Bnunhack
Title: Citv \Manager
Dane Signcd:
Address for giving notices:
11.0. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02.A):
Name: Jose A. Pasirana, P.H.
Title: Director of Engineering
I'lione Number. (281) 420.7154
Facsimile Number: (281) 420.6586
E -Mail Address: josc.pastranarr httytou -n.org
CONSUTA'ANT: DANNEBAUNI I :NGINEERIN'G
CORPORATION L
Signature:
Printed Name: WAYNE G. AHRENS
Title: EXECUTIVE VICE PRESIDENT
1'
Date Signed:
Address for giving notices:
3100 West Alabama
louston, Texas XXWX 77098
Dexiguated Representative (paragraph 6.112.A):
Fame: _AI FJ.ANURO C. —FUQE5
Title: H & H DIVISION MANAGER
Phone Number: 713- 527 -6365
Facsim lc Number. 713 - 527 -6338
E- AMailAddress: al.flores@dannenbauin.com
Sutndard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 12
This is EM111111' A. consisting of 6 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT Air Professional Services dated
Initial:
OWNEIt
CONSULTANT I1 �
CONSULTANT's Services
Article I of the Agreement is amended and supplemented to include the following agreement of the parties.
CONSULTANT shall provide Basic and Additional Services as set forth below.
PART 1 -- BASIC SERVICES (Modified)
A1.01 Dented
A 1.02 !tired Desiivr Phose
A. Upon written authorization from OWNER. C'UNSULTAN-C shall:
I. (Modtlicd) Prepare final Drawings indicating the scope, extent, and character of the Work to be
perforn►cd and furnished by Contractor. Specifications will be prepared, %%here appropriate, in
confortttance with the I6- division tonnat of the Construction Specifications Institute or other fornat
agreed to in writing by OWNER and CONSULTAN' .
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications
for permits tom or upprov als of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
?. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costs known to CUNSUL PANT
4. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any
time the Engineer's estimate of the probable Construction Cost or Total Project Costs exceed the
OWNER'S budget
5. Perform or provide the lollowing additional linal Design Phase tasks or deliverables:
a. Provide or cause it) be provided the following 11or the final design of the Project:
(1) Topographic survey;
(2) Geotechnictal investigation;
(3) linvironmental site Assessment Phase I; and
(4) 'Traffic Control Plans;
b. Prepare updates to the Project schedule;
c. Submit monthly status reports;
d. Attend monthly progress meetings with OWNI :R;
e. Submit all project - refuted correspondence
1' Submit impact report to l larris County blood Control District ("I WFC D" );
g. Coordinate with other consultants; and
It. Assist the City in obtaining public utility infon n Lion and coordination with l IC'FC'D concerning
impacts to I ICFCD's facilities.
i. Provide engineering drawings at 50 %, 70:U, 90';10, and 100% completion and provide quantity
take -offs and an opinion of probable construction cost for the proposed improvements at the 50%.
70 %, 90 51U, and 1001:'u milestones.
Page 1 of 3 Pages
(EXII111IT A - Scope of Work)
The deliverables for the 50 %, and 70 %, milestones regarding the plans shall include submittal
of the plan and profile sheets;
The Bidding Documents shall be included with the plans for both the 90% and 100% percent
submittals.
The schedule for the deliverables shall be as follows:
50% Submittals ...................................................... .............................90 calendar days
after notice to proceed
70% Submittals ...................................................... .............................45 calendar days
after 50% comments from
OWNER
90% Submittals ...................................................... .............................45 calendar days
after 70% comments from
OWNER
100% Submittals .................................................... .............................45 calendar days
after 90% comments from
OWNER
6. Provide three (3) full -size sets, one half -size set, and the project manual at 500/9, 70% and 90% for the
OWNER's review and comment.
7. Revise the 901/6 submittal documents in response to OWNER's and other parties' comments, as
appropriate.
8. Provide three (3) full -size sets of 1001/o Bidding Documents and a revised opinion of probable
Construction Cost to OWNER along with mylar drawings and 1CD of the Contract Documents for the
OWNER's review and comment within 15 calendar days after receiving OWNER'S comments on the
900/6 documents.
9. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation,
including plans and specifications, were originally prepared to reflect these items, as reasonably requested
by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents.
B. In the event that the Work designed or specified by CONSULTANT is to be performed or famished under
more than one prime contract, or if CONSULTANT's services are to be separately sequenced with the work
of one or more prime Contractors (such as in the case of fast - tracking), OWNER and CONSULTANT shall,
prior to commencement of the Final Design Phase, develop a schedule for performance of CONSULTANT's
services during the Final Design, Bidding or Negotiating, Construction, and Post - Construction Phases in order
to sequence and coordinate properly such services as are applicable to the work under such separate prime
contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or
not the work under such contracts is to proceed concurrently.
C. The number of prime contracts for Work designed or specified by CONSULTANT upon which the
CONSULTANT's compensation has been established under this Agreement is one (1).
D. (Modified) CONSULTANT's services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A1.03.A.6 have been delivered to and accepted by OWNER.
PART 2 -- ADDITIONAL SERVICES
A2.01 .4clilirioiral Senicer Requfri+ig OlViVBR's Aiitliori_ariort i►t Advascc•
Page 2 of 3 Pages
(EXHIBIT A - Scope of Work)
NotIncluded
A2.42 RegutredAddlilonal Servlaw
Not Included
Page 3 of 3 Pages
(EXHIBIT A -Scope of Work)
This is Exlilur B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSUL'I:aNT_�r( '
OWNER's Responsibilitles
Article 2 ofthe Agreement is amended and supplemented to include the following agreement of the parties
132.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide CONSULTANT with all criteria and fill infomtation as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, nexibility, and
expandability, and any budgetary limitntions; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard
forms, conditions, and related documents for CONSULTANT to include in the Bidding Documents, when applicable.
B. Fumish to CONSULTANT any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in
which the existing data and documentation will be provided shall beat the sole discretion of the OWNER.
C. (Modifie(l) Following CONSULTANT's assessment of initially - available Project infomration and data and
upon CONSULTANT's written request, furnish or otherwise make available such additional available Project related
uitonnation and data as is reasonably required to enable CONSULTANT to complete its Basic and Additional Sen•ices.
1. (Deleted).
2. (Deleted).
3. (Deleted).
a. (Deleted).
S. (Deleted).
G. (Deleted).
D. (Deleted).
G (Nlodifued) Authorize CONSULTANT to provide Additional Services asset forth in fart 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public and private
property as required for CONSULTANT to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings. Specifications, proposals, and other
documents presented by CONSULTANT (including obtaining advice of an attorney, insurance counselor. and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
Page I of 2 Pages
(Exhibit 11 — OWNER's Responsibilities)
H. (Deleted).
1. (Deleted).
J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and consttuctability review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
Page 2 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
'I III% is EX1ll1111' C. consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONS C1 LTA NT for Professional Services dated
Pavnients to CONSUITANT for Serices and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of the
parties:
ARTICLE-4 -- PAYAII ?N'1'S'1'O Tl lF. CONSULTANT
04.01 For Basic Services Having : f Determined
Scope —Cost not to Exceed ,I10hod of Par►Ment
A. OWNER shall pay CONSULTANT for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
:,mount of S140543.40, based upon the rate
schedule, which Is attached as Appendix I of
Exhibit C and incorporated Incrcin for all intents and
purposes. This ,nowt dues not include those
CONSULTANTS Consulumt's charges as provided
below in this Article 4• Subparagraph 04.05, and
%� ill lie distributed at the completion of cash of the
phase in the follo%%Ing amount:
:► Final Design Phase. ._ .. ..... — ... S 140,543.40
2. (Modified) CONSULTANT may with the
consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rendered, but shall not exceed the total cost not to
exceed amount unless approved ill writing by the
OWNER.
3. The cost not to exceed includes
compensation for CONSULTANT's services and
services of CONSULTANT's Consultants (with the
exception of those outlined in paragraph C4.05), if
any. Appropriate amounts have been incorporated
in the cost not to exceed to account for labor,
overhead, and profit.
4. Deleted.
Initial:
OWN EIt
CONSUL'I':1N'I'
5. 'I'he portion of the amount billed for
CONSULTANT's services will lie based upon total
services actually completed during the billing
period, which shall be a calendar month. Invoices
shall be tendered no more ofien than once a month
for all of the services performed during the
applicable month.
04.02 For Basic Services Hari is An Undetermined
Scope -- Direct Labor Coats Tones o factor
Method of PaYole►rr
A. (Not Used).
04.03 !•orAilditionccl Sen•ic•es
A. OWNER shall pay CONSULTANT for
Additional Services as follows:
1. General. Fur scr ices of
CONSULTANT's employees engaged directly on
the Projcct pursuant to paragraph A2.01 or A2 02 of
Exhibit A of the Agreement, except I'm services as a
consultant or witness under paragraph A2.01.A.13.
an amount based upon the actual lours worked and
the rate schedule, which is attached as Appendix I
of Exhibit C and incorporated herein for all intents
and purposes plus Reimbursable Expenses.
Additional Services shall not be performed without
the prior written consent ol'tl►c OWNER.
C'4.04 For Rein►biou'ahle &tenets
A. (Modified) When not included in compensation
for Basic Services under paragraph C4 01, OWNER
shall pay CONSULTANT for Reimbursable
Expenses as the rate set forth in Appendix 2 of this
Exhibit C. Before the OWNER shall be liable for
any reimbursable expenses. the CONSULTAN T
ANT
Most obtain prior written approval of the OWNER
of :u►y expense that exceeds SI,000 I'm which the
CONSULTANT seeks reimbursement.
Page 1 01'2 Pages
(Exhibit C - Basic Services With Determined Scopc -- Cost not to exceed Method)
Reimbursable Expenses shall not exceed S5M C4.08 Other Provtrinns Concerning Payment
without the prior written consent of the Owner.
B. (Modifted) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items in
addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to CONSULTANT for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
CONSULTANT, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of 0.100).
D. Deleted.
E. (Added) The OWNER must approve all travel
expenses before the same are incurred. If such approval
is not obtained, the OWNER shall not be liable for such
travel expenses.
C4.05 ForCONSULT4NT's Cansulranr's Charges
A. (11vtodified) Whenever compensation to
CONSULTANT herein is stated to include charges of
CONSULTANT's Consultants, those charges shall be
the amounts billed by CONSULTANT's Consultants to
CONSULTANT times a Factor of (1.10). The
consultant charges shall not exceed the following
amounts specified for each of the following services,
unless approved in writing by the OWNER. The charges
include the factor, and shall not exceed the following
without prior written consent of the OWNER.
Final Design n hase
Topographic Survey . ............................... S19.770
Geotechnical Investigation ...................... S14.331
Environmental Site Assessment Phase 1 ... 54,012
Traffic Control Plans ............................... $14,858
C4.06 Direct Labor Costs
A. Direct Labor Costs means salaries and wages
paid to CONSULTANT's employees but does not
include payroll related costs or benefits.
B. (Deleted).
4.07 Factors
(Deleted)
A. Progress Payutents. The portion of the
amounts billed for CONSULTANT's services
which are identified in paragraphs C4.01 and C4.03,
will be based on the Direct Labor Costs for the
cumulative hours charged to the Project during the
billing period by all of CONSULTANT's
employees, plus Reimbursable Expenses and
CONSULTANT's Consultant's charges, if any.
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges -- Carr not to Exceed Method of Payment)
APPENDIX I Or EXHIBIT C— HOURLY RATES
Hourly Rates for Consultant Staff:
All services are to be billed on an hourly basis based on time and materials and based upon the following rates:
Staff Ceteaoa
Hourly Rate*
Principal..............................
........................$225.00
ProgramManager ................
........................$195.00
Design Engineer ..................
........................$125.00
Graduate Engineer 1 ............
........................$102.00
CAD /GIS Technician ...........
.........................S81.00
WordProcess / Clerical» ........
.........................S66.00
•tneluda Multiplicr
Page 1 of 1 Pages
(Appendix 1 of Exhibit C — Hourly Rates)
APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS
Reproduction and Deliveries: Cost plus 10%
Mileage: IRS Rate
Travel: Cost
Page I of 1 Pages
(Appendix 2 of Exhibit C — Reimbursement of Costs)
This is EXIIIBIT G. consisting of? pages, referred to in and
part of the Agreemcu between 0WNE It and
CONSULTANT for Professlonnl Services dated
Initial:
OWNER
V—
Insurance
CONSULTANT l� f;' `'
Paragraph 6.05 of the Agreement is amended and suppletnentcd to include the Hollowing agreement of the parties.
G6,0i hmurwnc
'Throughout the term of this Agreement, the CONSULTANT at its own expense shall purchase. maintain and keep
in force and effect insurance against claims for injuries to or death of persons or damages to property which may
arise out of or result from the CONSULTANT's operations and/or performance of the work under this Agreement,
whether such operations and/or perf'onnance be by the CONSULTANT, its agents, representatives, volunteers,
employees or subcontractors or by anyone directly or indirectly employed by any of them. or by anyone for whose
acts any ul'them may be liable.
The CONSULTANT*s insurance coverage shall be primary insurance with respect w the OWNER. its uflicers.
agents and employees. Any insurance or sell* insurance maintained by the OWNIiR, its officials, agents and
employees shall be considered in excess of the CONSULTANT's insurance and shall not contribute to it. f=urther,
the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability
policies or sliall furnish separate certificates and endorsements for ouch subcontractor. All covcrugc f'or
subcontractors shall be subject to all uf'the requirements stated herein.
The 1'011utiving is a list of standard insurance policies along with their respective minimum coverage anunutts
required in this contract:
Commercial General Liability (CGL)
General Aggregate: S1.000.000
Products & Completed Operations: S 1.000,000
Personal & Advertising Injury: S 1.000.000
Per Occurrence: 5500.000
a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without notification of individual exclusion% being
attached for review and acceptance.
Business Automobile Policy MAP)
Combined Single Limits: S1,000,000
a. Coverage for "Any Auto."
Workers' Compensation ItlSnranCe
Statutory limits
Employer's Liability S500,000
Waiver of Subrogation required
Terrors & Omissions (E &O)
Limit: 5500,000
a. I or all engineers, andlor design companies.
Page 1 of? Pages
(Exhibit G - Insurance)
b. Claims-made form is acceptable.
c. Coverage will be in force for three (3) years after project is completed.
Upon execution of this contract, CONSULTANT shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail, return receipt requested.
The CONSULTANT shall also rile with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of B + :VI1 or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form. E & 0 can be on claims -made form.
d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general
liability and business automobile policies.
e. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates of
insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of
insurance coverage shall be provided to OWNER's representative prior to execution of this agreement.
f. Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance coverage
shall be furnished to OWNER's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EX IIBIT K. consisting oN pages, FdCITC[I 10 ill and pan of
the Agreement between OWNER and CONSu rANT for
Professional Services dated
Initial:
OWNER
CONSULTANT
Indemnification
CONSULTANT' AGREES TO AND SHALL INDEMNIFY AND
HOLD IIARIILESS AND DEFEND OWNER, ITS OFFICERS,
AGENTS, AND EINIPLOYEES (HEREAFTER REFERRED TO AS
'10\11N'ER11) FROI'1 AND AGAINST ANY AND ALL CLA11'IS,
LOSSES, DANIAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATT'ORNEY'S FEES, FOR
INJURY TO Olt DEATH OF ANY PERSON, FOR DAMAGE 'TO
ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO
TI-IE EXTENT ARISING OUT OF OR IN CONNEC'T'ION WITH AN
ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGI1"AlEN1', Olt FAILURI TO PAN' A
SUBCON''T12AC'TOIt OR SUPPLIER CON1�11IT'T'ED B1' THE
CONSULTANT OR TI-IE CONSULT'ANT'S AGENT,
CONSULTANT UNDER CONTRACT, OR ANOTHER ENTI'T'Y
OVER WHICH THE CONSULTANT EXERCISES CONTROL
(COLLECTIVELY CONSULTAN'T'S PARTIES). IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
CONSUL'T'ANT AND OWNER, 'THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY
CONSULTANT TO INDEMNIFY AND PROTECT OWNER FROM
THE CON'SEQUENCE'S OF CONSULTANT'S PARTIES' OWN
WILLFUL NIISCONDUCT, JOINT OR SOLE NEGLIGENCE AS
WELL AS THE CONSULTANT''S PARTIES' INTENTIONAL
'PORTS, INTELLECTUAL PROPERTY INFRINGEMENTS, AND
FAILURES TO MAKE 13AYMENTS ARISING OUT OF Olt IN
CONNECTION 1VITH '1 HIS AGREEMENT. SUCH INDEMNITY
S1-IALL NOT APPLY, HOWEVER, TO LIABILITY ARISING
FROM T'IIE PERSONAL INJURY, DEA'TI-I, OR PROPERTY
DANIAGE' OF PERSONS '1'I -IAT 1S CAUSED BY OR RESULTS
FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN
TI-IE CONSULTANT'S PARTIES. IN THE EVENT THAT ANY
ACTION OR PROCEEDING IS BROUGHT AGAINST THE
OWNER FROM WHICH THE OWNER IS INDEMNIFIED,
CONSULTANT FURTHER AGREES AND COVENANTS TO
DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL
ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED
HEREINABOVE SHALL SURVIVE THE TERMINATION
AND /OR EXPIRATION OF THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER
hereby expressly revokes any consent to litigation that it may have granted by the terms
of this Contract or any other contract or agreement, any charter, or applicable state law.
Nothing herein shall be construed so as to limit or walve OWNER'S sovereign
Immunity. CONSULTANT assumes full responsibility for its work performed hereunder
and hereby releases, relinquishes and discharges OWNER, its officers, agents, and
employees from all claims, demands, and causes of action of every kind and character
for any injury to or death of any person and /or any loss of or damage to any property
that Is caused by or alleged to be caused by, arising out of, or In connection with
CONSULTANT's work to be performed hereunder. This release shall apply with
respect to CONSULTANT's work regardless of whether said claims, demands, and
causes of action are covered in whole or In part by insurance.
The protections afforded to OWNER In this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and/or expiration of this Agreement.