Ordinance No. 11,946ORDINANCE NO. 1 1,946
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AN AGREEMENT WITH JONES & CARTER, INC., TO PROVIDE
ENGINEERING SERVICES RELATED TO THE FERRY ROAD SANITARY SEWER
IMPROVEMENT PROJECT; AUTHORIZING PAYMENT BY THE CITY OF
BAYTOWN IN THE AMOUNT OF SEVENTY -FNE THOUSAND AND NO /100
DOLLARS ($75,000.00); AND PROVIDING FOR THE EFFECTIVE DATE
THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section l: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute and the City Clerk to attest to an agreement with Jones & Carter, Inc., to provide
engineering services related to the Ferry Road Sanitary Sewer Improvement Project. A copy of the
Agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Jones &
Carter, Inc., of the sum of SEVENTY -FNE THOUSAND AND NO /100 DOLLARS ($75,000.00),
pursuant to the Agreement.
Section 3: That the City Manager is hereby granted general authority to approve any change
order involving a decrease or an increase in costs of FIFTY THOUSAND AND NO/] 00 DOLLARS
($50,000.00) or less; however, the original contract price may not be increased by more than twenty-five
percent (25 %) or decreased by more than twenty-five percent (25 %) without the consent of the contractor
to such decrease.
Section 4: This ordinance shall take effect immediately nd after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote
Baytown this,J!>of May, 2012.
APPROVED AS TO FORM:
NACIO RAMIREZ, SR., Attorney
the City Council of the City of
\ \cobfs0I \1ega1\Karen \Fi1es \City Council \Ordinmcos 2012Way 24 Vones &CMer4FerryRoadProjecl.doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the _ day of May, 2012 ("Effective Date').
FT �'1
City of Baytown ( "OWNER')
and
Jones & Carter, Inc. ( "ENGINEER')
ENGINEER shall perform professional services necessary for the design, bidding and construction of the Ferry
Road Sanitary Sewer Improvement Project ("Project'). The Project shall correct the existing hydraulic situation
that has caused several sanitary sewer overflows at manholes along Ferry Road near the intersection of Ferry
Road and Hayes Road The Project will include the construction of a new gravity sanitary .sewer line,
abandonment of a portion of an existing sanitary sewer line, construction of a packaged lift station, and the
expansion of the Supervisory Control and Data Acquisition ( SCADA) system currently being installed by
others. The SCADA expansion includes the addition of two sites (Raccoon Lift Station site and a manhole
near the intersection of Ferry Road and Hayes Road) and modifications to the SCADA system at the Cedar
Bayou Lift Station. The SCADA modifications and expansion will include monitoring the wet well level at the
Raccoon Lift Station and the manhole level new Ferry Road and Hayes Road and manual forced pump
operation by the operations persormel at the East District Wastewater Treatment Plant.
OWNER and ENGE%= 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 1 of 11
TABLE OF CONTENTS Nut
ARTICLE 1- SERVICES OF ENGMEER..»»»....» ...............»...»...»........».»»....................»..» .. »....... » » ».. ».... »....... ».. 3
1.01 Scope .. ................................ .......... ...................................................... .......... ................ .. ..................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES ......... » ...... » ......................................»...................... .........»..................... 3
2.01 General ....... ... .......... » ................................. ... ..... » ...................... » ......................................... » .... . .............. »..... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES .... .......... »..» ........... » ....... ».».»»..» ............ . .... ..... ».......... » ».. ». ».. 3
3.01 Genersl»».».»..........»........»»»....»...... ....... »..». ............... » ..... .......... ................. .. »..... .... » ».. »..... 3
3.02 Suspension ..............»....»..»»......»....»....»..»»...».......»»..»......»..... ........... ... ......................... . .............. ».. »..... 3
ARTICLE4 - PAYMENTS TO ENGINEER ....... ... ... ................................................ »........»....... ..... ». »....................
».. 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER .............. ..............:................
3
4.02 Other Provisions Concerning Payments ........ » .......... » ................................»................... ...............................
3
ARTICLE 5 - OPINIONS OF COST ..»....»..........»........»..»..........» .........................................»... ..........»...
».... »..... ».. ».. 4
5.01 Opinions of Probable Construction Cost. ... » .... .» .................. ................».................. ......................
».. »..... 4
5.02 Designing to Construction Cost Limit. .».......».» ..................»......»............ ................ ».............. ............... 4
5.03 Opinions ofTotal 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 Servicrs....»..»»»»»......».....». ..... » ............................. »....
». »... »..... ».. 5
6.04 Use of Docttmetus ..»..»......»»..»».»»....... .... »»..» ......... » ....... »..»... .... » ...... » .... » ... » .... » .......... » »..» ...... .......... 5
6.05 Insurance.»»...».»....».»...».......»....»»..»» ....................». ...... .......... .» .... ............................. ....
». »..... »....... ».. 6
6.06 Termination »..»»..»»......» ............... » .... ».»» ........................................ »..»..»..... .... »...... »..
» ».. ».... » »...».. 6
6.07 Controlling Law ...... » ....................... » ........ ». ..... » ........... ....» .... » ................. » ....................... » ....
»... ...... .......... 6
6.08 Successors, Assigns, and Beneficiaries ....... » ...............».................................................. ...............................
6
6.09 Dispute Resolution ..».» .............................................»........................»......».................... ...............................
7
6.10 Hazardous Environmental Condition ............................................................................... ........ » »..................... 7
6.11 Allocation of Risks ..».» ........ »..» ................ »..» ....................... » .... ». ... ».».» ................................... . ............. ».. 7
6.12 Notioes....»»..»»»....».».........».....»..»....».» .............................»...........».........»............» ......... » ».................... 7
6.13 Survival ..... ..... ....»...... .............. »..»»» .... »..... ......................... » ...... ...»................................................. 7
6.14 Severability.».»........».»....»„».»..»»...»»».».»..»........».».......»..»»............»......»....... ... ». »......». ... ».. » .... »..... 7
6.15 Waiver ..»»..» .......... ... .............. »..»..» ........ ... ............................... » ................ ... ................................ ......... 7
6.16 Headings ................................................ ».. ..... ..................................... ............. .......................... ». » .... ....... 8
ARTICLE7 - DEFINITIONS ............................... » ................................. . .................................................................... »..... 8
7.01 Defined Terms ....................... ......................................... ...................................................... . ....... ........ ».... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .............. » .... »»..» .............................................. ...
.......... ».. 9
8.01 Exhibits Included ........ » .......... » ... »......».»..»....». ... » ... .. ... » ........ » ...............».......»..... ..... ».... » » »........ ».... ».. ». 9
8.02 Total Agreement ........ »» ................... ».»»..». ................................................... » ................................... 10
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of I I
ARTICLE I - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and Additional
Services set forth herein and in Exhibit A.
B. Upon issuance of a notice to proceed, ENGINEER is
authorized to begin Basic Services as set forth in Exhibit A.
C. (Deleted).
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. ( Modified) ENGINEER's services and compensation
under this Agreement have been agreed to for the design of
the Project together with other services speafied in Exhibit A.
ENGINEER'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 tern
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted)
B. (Modified) If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, ENGINEER may
be entitled to equitable adjustment of rates and amounts of
compensation provided for elsewhere In this Agreement to
reflect, reasonable costs incurred by ENGINEER In
connection with, among other things, such delay or suspension
and reactivation and the fact that the time for performance
under this Agreement has been revised, unless such delay or
suspension is caused In whole or in part by the ENGINEER,
its offices, agents, or employees. If Engineer causes or
contributes to the delay or suspension, ENGINEER shall have
no right to seek additional compensation.
ARTICLE 4 - PAYMENTS TO ENGINEER
4.01 Methods of Payment for Services and
Reimbursable Expenses of ENGINEER
A. For Basic Services. OWNER shall pay ENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1, as set forth In Exhibit C.
B. For Additional Services. OWNER shall pay
ENGINEER for Additional Services performed or furnished
under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.013, OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER's
Consultants as set forth In Exhibit C. However, all expenses
associated with meals and lodging must be approved in
writing by OWNER prior to ENGINEER Insuring any
expense associated therewith; otherwise, the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEER shall not make a claim against OWNER for any
such expenses.
4.02 Other Provisions Concerning Payments
A. Preparaflon of Invoices. Invoices will be prepared
in accordance with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or small
by ENGINEER, unless otherwise agreed. ENGINEER shall
supply detailed back-up information along with each invoice
In order for the OWNER to effectively evaluate the fees and
charges. The amount billed in each invoice will be calculated
as set forth in Exhibit C.
B. (Modified) Payment of Imrokes. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice and the
required backup documentation therefor, the amounts due
ENGINEER 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. ENGINEER may after giving seven days'w ritten
notice to OWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expanses, and other related charges. However, it Is
expressly understood and agreed that ENGINEER will not
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 1 I
dwp 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 ENGINEER will not
suspend services under the agreement on account of a
disputed invoice or on account of monies withheld. All
payments will be credited first to principal and then to interest
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination.
1. In the event of any termination under section
6.06, ENGINEER will be entitled to invoice OWNER
and will be paid In accordance with Exhibit C for all
services performed or famished 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) Retards of ENGINEER's Cwt.
Records of ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
Copies of such records will be made available to OWNER
upon request at no cost to OWNER.
F. Legisialim Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
ENGINEER's services or other costs in connection with this
Project or compensation therefor, such new taxes, fees, or
costs shall be invoiced to and paid by OWNER as a
Reimbursable Expense to which a Factor of 1.0 shall be
applied. Should such taxes, fees, or costs be imposed, they
shall be in addition to ENGINEER's estimated total
compensation.
G. (Added) Indebtedness. If ENGINEER, 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 ENGINEER has incurred a
debt, the OWNER's Director of Finance shall immediately
notify the ENGINEER in writing. If the ENGINEER does
not pay the debt within 30 days of tither such notification,
the OWNER's Director of Finance may deduct Raids in an
amount equal to the debt from any payments owed to the
ENGINEER under this Agreement, and the ENGINEER
waives any recourse therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. ENGINEER's opinions of probable Construction
Cost provided for herein are to be made on fire basis of
ENGINEER's experience and qualifications and represent
ENGINEER's best judgment as an experienced and qualified
professional generally familiar with the industry. However,
since ENGINEER has no control over the cost of labor,
mawrials, equipment, or services famished by others, or over
the Contractor's methods of determining prices, or over
competitive bidding or market conditions, ENGINEER cannot
and does not guarantee that proposals, bids, or actual
Construction Cost will not vary from opinions of probable
Construction Cost prepared by ENGINEER. If OWNER
wishes greater assurance as to probable Construction Cost,
OWNER shall employ an independent cost estimator as
provided in Exhibit B.
5.02 Designing to Construction Cost Limit
A. (Deleted)
5.03 Opinions of Total Project Costs
A. (Deleted)
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all professional
engineering and related services performed or famished by
ENGINEER under this Agreement will be the care and skill
ordinarily used by members of ENGINEER's profession
practicing under similar circumstances at the same time and in
the some locality.
B. (Modified) ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
therefrom, and OWNER shall not be responsible for
discovering deficiencies therein. ENGINEER shall correct
such deficiencies without additional compensation except to
the extent such action is directly attributable to deficiencies In
OWNER - famished information upon which ENGINEER 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 11
C. ENGINEER shall perform or furnish professional
engineering and related services in all phases of the Project to
which this Agreement applies. ENGINEER gall serve as
OWNER's prime professional for the Project. ENOINBER
may employ such ENGINEER's Consultants as ENGINEER
dams necessary to assist in the performance or Banishing of
the services. ENGINEER shall not be required to employ any
ENGINEER's Consultant unacceptable to ENGINEER.
D. ENGINEER 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 ahem the
Effective Date of this Agreement may be the basis for
modifications to OWNER's responsibilities or to
ENGINEER's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and
other Information Banished by OWNER to ENGINEER
pursuant to this Agreement, unless expressly stated or
communicated otherwise by OWNER ENGINEER may use
such requirement% reports, data, and information U
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of ENGINEER
G. (Deleted).
H. (Modified) ENGINEER shall not be required to sign
any documents, no matter by whom requested, that would
result in ENGINEER's having to ow*, guarantee or warrant
the existence of conditions whose existence ENGINEER
cannot ascertain; provided, that ENGINEER has exercised
due diligence and was not otherwise required to certify,
guarantee or warrant the existence of such conditions.
I. (Deleted).
J. (Deleted)
K. (Deleted).
L. (Deleted).
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER's and OWNER's
representatives with respect to the services to be performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement. Such individuals shall have authority
to transmit instructions, receive information, and render
decisions relative to the Project on behalf of each respective
ply.
6.03 Design without Construction Phase Services
(Deleted).
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
ENGINEER grants to the OWNER an ownership interest in
the instruments of Service. The ENGINEER shall obtain
similar interests from the OWNER and the ENGINEER's
consultants consistent with this Agreement. Within seven
days of any termination or expiration of this Agreement, the
ENGINEER shall be required to tender to OWNER all
Instruments of Service; provided OWNER has paid all
monies, excluding any disputed amount, due and owing to
ENGINEER in accordance with this Agreement. With such
ownership interest, it is expressly understood by the parties
hereto that the OWNER may use the Instruments of Service
for any purposes which the OWNER sees fit, including, but
not limited to, subsequent construction, reconstruction,
alteration, and/or repairs of the Project. As a condition to the
OWNER's use of the Instruments of Service, the OWNER
hereby expressly agrees to remove the ENGINEER's name
and all references to the ENGINEER, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04A shall be for the beneAt of the ENGINEER,
its officers, and employees and sub - consultants, as well as
their successors and assigns.
B. (Modified) Copies of OWNER - Punished data that
may be relied upon by ENGINEER are limited to the printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER Files in electronic media format of text, data,
graphics, or of other types that are furnished by OWNER to
ENGINEER are only for convenience of ENGINEER Any
conclusion or information obtained or derived from such
electronic files will be at the user's sole risk.
C. Copies of Documents brat may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the ENGINEER Files in
electronic media fonnat of text, data, graphics, or of other
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page S of I I
types that are furnished by ENGINEER to OWNER arc 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 mussicned.
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period. ENGINEER
shall not be responsible to maintain documents stored in
electronic media format after acceptance by OWNER.
E. When transferring documents in electronic media
format, ENGINEER makes no representations as to long -tam
compatibility, usability, or readability of documents resulting
from the use of software application packages, operating
systems, or computer hardware differing from time used by
ENGINEER at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
ENGINEER from any liability associated solely with the rem
ofthe Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
EL Any verification or adaptation of the Documents for
extenslons of the Project or for any other project will entitle
ENGINEER to further compensation at hates to be agreed
upon by OWNER and ENGINEER.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance as
set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At anytime, OWNER may request that ENGINEER,
at OWNER's sole expense, provide additional insurance
coverage, increased limits, or revised deductibles that are
more protective than those specified in Exhibit G. If so
requested by OWNER, with the concurrence of ENGINEER,
and if commercially available, ENGINEER shall obtain and
shall require ENGINEER's Consultants to obtain such
additional insurance coverage, different limits, or revised
deductibles for such periods of time as requested by OWNER,
and Exhibit G will be supplemented to incorporate these
requirements. .
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 30 days'
written notice in the event of faihre by the other
party to perform In accordance with the terns hereof
through no fault of the terminating party, or
Is. By ENGINEER upon seven days written
notice If ENGINEER is being requested by OWNER
to thrush or perform services contrary to
ENGDE ER's responsibility as a licensed
professional.
a 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 curse such failure within no more than 30 days of
mccitpt thereof, provided, however, that if and to time
extent such substantial failure cannot be reasonably
cured within such 30 day period, and if such pasty
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 convvenkme by OWNER effective upon the
receipt of notice by ENGINEER.
B. Not used.
6.07 Controlling law
A. This Agreement is to be governed by the law of the
state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 1 I
A. OWNER and ENGINEER each is hereby bound and
the partners, successors, executors, administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.13 the assigns of OWNER
and ENGINEER) are hereby bound to the other party to this
Agreement and to the partners, successors, executors,
administrators and legal representatives (and said assigns) of
such other party, in respect of all covenants, agreements and
obligations of this Agreement.
B. Neither OWNER nor ENGINEER may assign,
sublet, or transfix any rights under or interest (including, but
without limitation, moneys that are due or may become due) in
this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or transfer
is mandated or restricted by law. Unless specifically stated to
the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any
duty or responsibility under this Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed to
create, impose, or give rise to any duty owed by OWNER
or ENGINEER to any Contractor, Contractor's
subcontractor, supplier, other individual or entity, or to
any surety for or employee of any of them.
2. All dudes and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusive benefit of OWNER and ENGINEER and not
for the benefit of any other patty. 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 Engineer that to the best of its
knowledge a Hazardous Environmental Condition does not
exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to ENGINEER the existence of all
Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, ENGINEER shall have
the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any services
related to a Hazardous Environmental Condidon In the event
ENGINEER or any other party encounters a Hazardous
Environmental Condition, ENGINEER may, at its option and
without liability for consequential or any other damages,
suspend performance of services on the portion of the Project
affected thereby until OWNER: 0) retains appropriate
specialist consultant(s) or contractor(s) to ideto and, as
appropriate, abate, remediate, or remove the Hazardous
Environmental Condition; and (ii) warrants that the Site is in
fill compliance with applicable Laws and Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and drat
ENGINEER 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, Compensatior% and Liability Act of
1990 (CERCLA), which are or may be enoountered at or near
the Site in connection with ENGINEER's activities under this
Agreement.
F. If ENGINEER's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
ENGINEER's terminating this Agreement for cause on 30
days notice.
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 sipature 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.
Standard Form ofAgreement
Between Owner and Engineer for Professional Services
Page 7 of 11
6.13 Survival
A. ( Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and ENGINEER, who
agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the
intention of die stricken provision.
61S Waiver
A. Non - enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Readings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 DNined 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. Deleted
2. Additional Services —The services to be
performed for or furnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 2 of this Agreement.
3. Agreement —This "Standard Form of Agreement
between OWNER and ENGINEER for Professional
Services," Including those Exhibits listed in Article 8
hereof
4. Applkation for Payment —The form acceptable
to ENGINEER which Is to be used by Contractor in
requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents.
S. 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 hmished to OWNER by ENGINEER In
accordance with Exhibit A, Part 1, of this Agreement.
7. Deleted
8. Deleted
9. Deleted
10. Deleted
11. Deleted
12. Deleted
13. Deleted
14. Deleted
IS. Deleted
16. Deleted
17. Deleted
18. Deleted
19. Documents —Data, Reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or funished in appropriate phases by ENGINEER to
OWNER pursuant to this Agreement.
20. Drawings —That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
performed by Contractor. Shop Drawings are not
Drawings as so defined.
21. Deleted
22. Effictive Dare of the Agreement —The date
indicated in this Agreement on which it becomes
Standard Form ofAgreement
Between Owner and Engineer ibr Professional Services
Page 8 of l l
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. ENGWEFR's Consultants— Individuals or
entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER's
independent professional associates, consultants,
subcontractors, or vendors. The term ENGINEER
includes ENGMEER's Consultants.
24. Deleted
25. Deleted
26. Deleted
27. Hazardous Environmental Condition—The
presence at the Site of Asbestos, PCB's, Petroleum,
Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
28. Hazardous Waste The tern Hazardous Waste
shall have the meaning provided in Section 1004 of the
Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.
29. Laws and Regulations, Laws or Regulations —
Any and all applicable laws, rules, regulations,
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts
having jurisdiction.
30. PCB's— Polychlorinated biphenyls.
31. Petroleum — Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refine, 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. Deleted
34. Reimbursable &.penes —The expenses incurred
directly by ENGINEER in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
35. Deleted
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. Deleted
38. Site —Lands or areas indicated in the Conduct
Documents as being fianished by OWNER upon which
the Work is to be performed, rights -of -way and easements
for access thereto, and such other lands famished by
OWNER which are designated for use of Contractor.
39. Deleted
40. Deleted
41. Deleted
42. Deleted
43. Work —The entire completed construction or the
various separately identifiable parts thereof required to be
provided under the Contract Documents with respect to
this Project. Work includes and is the result of
performing or furnishing labor, services, and
documentation necessary to produce such construction
and furnishing, installing, and incorporating all materials
and all equipment into such construction, all as required
by the Contract Documents.
44. Deleted
45. Written Amendment A written amendment of
the Contract Documents signed by OWNER and
Contractor on or after the Effective Date of the
Construction Agreement and normally dealing with the
non - engineering or non - technical rather than strictly
construction-related aspects of the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 11
A. Exhibit A, "ENGINEER's Services," consisting of
seven (7) pages.
B. Exhibit B, "OWNER'S Responsibilities," consisting
of two (2) pages.
G Exhibit C, "Payments to Engineer for Services and
Reimbursable Expanses," 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,"
consisting of two (2) pages.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
I. Exhibit I, "Allocation of Risks." is not used.
J. Exhibit J, "Special Provisions" is not used.
IL (Added) Exhibit K, "Indemnification " consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 11
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understartdirtgs. 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 10 of i I
IN WUNESS WHEREOF, the patties hereto have
executed this Agreement, the Effective Date of which Is
Indicated on page 1.
OWNER: CITYOF BAYTOWN
Signature:
Printed Name: Robert D. L.eigse
Title: City Manager
Date Signed:
Address for giving notices:
P.O. Box 424
Baytown, Texas 77522
Designated Representative (paragraph 6.02.A):
Name: Jose A. Pash=4 P.E.
Title: Director of Engineering
Phone Number: (281) 420 -7154
Facsimile Number. (281) 420.6586
E-Mai1 Address: Jose.Pwwna@baytown.org
ENGINEER: JONES CAR 1NC.
Signature: 7-- 2—z
Printed Name:
Tide: a - i &I34Q5 C
Date Signed: .
Address for givifig ftfices: :
6335 Guli3on, Suite 100
Houston, TX 77081 -1169
Designated Representative (paragraph 6.02.A):
Name: Tobin Synatschk, P.E.
Title: Vice President
Phone Number. (713) 777 -5337
Facsimile Number. (713) 777 -5976
&Mail Address: tts(@jonmAntercom
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 1 l
This is EXHIBIT A, consisting of 7 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
ENGINEER shall provide Basic and Additional Services as set forth below.
PART 1— BASIC SERVICES (Modified)
A1.01 Prelhnhtary Design Phase (Deleted in Us enth -ety)
A1.02 Design Phan
A. ENGINEER shall:
1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B, which are not part of ENGINEER's Basic Services, and assist OWNER in obtaining such
data and services.
3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER, Including, but
not limited to, mitigating measures identified in the environmental assessment (if any).
4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in ENGINEER's judgment meet OWNER's
requirements for the Project.
5. (Modified) Attend one (1) meeting with OWNER and OWNER's consultants, designated boards
commissions, and/or city council to receive Input Into OWNER'S requirements for the Project, to
evaluate potential solutions available to OWNER and to discuss and finalize design criteria and acquire
pertinent information regarding the Project
6. (Modified) Perform or provide the following additional Preliminary Design Phase tasks or deliverables:
(a) Provide a complete design survey for the Ferry Road portion of the Project including required
topography and site boundary information. The survey shall provide complete horizontal and
vertical control as well as show ownership, encumbrances, recorded easement information, existing
infrastructure, and topographic information for construction of the proposed sanitary sewer
Improvements.
(b) Design approximately 2,000 linear feet of 6° or 8° sanitary gravity sewer line to replace an existing
sanitary sewer line along Ferry Road.
(c) Abandonment of approximately 2,700 linear fat of existing sanitary sewer which Includes
plugging and filling with llowable fill.
(d) Design modifications to the Cedar Bayou Lift Station SCADA controls to allow an operator
located at the East District Wastewater Treatment Plant to monitor the wet well level and force a
Page 1 of 7 Pages
(Exhibit A — ENGINEER's Services)
pump on or off. The design will include detailed specifications with operational descriptions, 1/0
list, but will not include construction drawings. The specifications will require the controls
integrator to be the some as the controls Integrator that is currently installing the SCADA system.
(e) Design a control system at the Raccoon Lift Station that communicates with OWNER's SCADA
system and allows an operator at the East District Wastewater Treatment Plant to monitor the wet
well level and force a pump on or off. The SCADA system will also monitor pump run status,
pump Intake and discharge pressure, and all existing alarms. The design will include detailed
specifications with operational descriptions, 110 list, but will not include construction drawings,
The specifications will require the controls integrator to be the same as the controls integrator that
is currently installing the SCADA system.
(i) Design a level monitoring system at a manhole near the intersection of Ferry Road and the East
District Wastewater Treatment Plant entrance and send the level Information to the Fast District
Wastewater Treatment Plant through OWNER'S SCADA system. The design will Include detailed
specifications of the equipment and operation only without construction drawings. The
specifications will require the controls integrator to be the same as the controls integrator that is
currently installing the SCADA system.
(g) Design a level monitoring system at each onsite lift station at the East District Wastewater
Treatment Plant to send the wet well level to the SCADA display located in the onsite operation
building. The design will include detailed specifications of the equipment and operation. The
specifications will require the controls integrator to be the same as the controls integrator that Is
currently installing the SCADA system.
(h) Design a small grinder station and force main to serve the church located on Ferry Road. The
design will Include specifications of the equipment and construction drawings.
(I) Provide a geotechnical Investigation for the proposed improvements. The purpose of the
investigation will be to evaluate the new surface geological conditions and to provide geotechnical
conclusions and design recommendations regarding the proposed improvements. Investigation
will address: general soil and geologic conditions; and recommendations for structures and sanitary
sewer design; depth to groundwater or seepage; excavation considerations; pavement design
recommendations; recommendations for trenching and shoring, foundation design, select fill
requirements and bearing strength.
(j) Acquire plan approvals from the OWNER, Harris County, all utility companies (if necessary), and
the Texas Commission on Environmental Quality.
(k) Coordinate with the local service providers to confirm adequacy of electrical service capacity.
7. (Modified) On the basis of the acceptance, direction, and authorization from the OWNER, prepare final
Drawings indicating the scope, extent, and character of the Work to be performed and furnished by
Contractor, including quality level for major materials. Specifications will be prepared, where
appropriate, in conformance with the 16- division format of the Construction Specifications Institute or
other format agreed to in writing by OWNER and ENGINEER.
8. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
9. Advise OWNER of the opinion of probable Construction Cost and Total Project Costs known to
ENGINEER.
10. 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.
Page 2 of 7 Pages
(Exhibit A -- ENGINEER's Services)
11. Prepare storm water pollution prevention plan and traffic control plan (if necessary).
12. Provide an electronic set of 90% Project documents for the OWNER's review and comment within 115
calendar days of authorization to begin design services and review it with the OWNER
13. Revise the documents in response to OWNER's and other parties' comments, as appropriate
14. Provide an electronic set of 100% Bidding Documents for the OWNER's review and comment within
ten (10) calendar days after receiving OWNER'S comments on the 90% documents.
15. Revise the documents in response to OWNER's and other parties' comments, as appropriate, and
furnish an electronic copy in "Portable Data Format" (PDF) of the revised 100% Bidding Documents
and a revised opinion of probable Construction Cost to the Owner within ten (10) days after completion
reviewing the 100% Bidding Documents with Owner.
B. (Modified) ENGINEER's services under the Design Phase will be considered complete on the date when
the final copies of the revised 100% Bidding Documents have been delivered to and accepted by OWNER.
A1.03 Bldding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Design Phase, and upon written authorization by OWNER to proceed, ENGINEER
shall;
1. Assist OWNER in advertising for and obtaining bids for the Work.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables:
a. Consult with OWNER to determine the acceptability of substitute materials and equipment
proposed by bidders.
b. Recommend award to the OWNER
S. (Modified) Attend the Pre -Bid Conference, prepare Bid tabulation sheets, assist OWNER In both
evaluating Bids or proposals and awarding contracts for the Work.
6. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A 1.04 Contraction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, ENGINEER shall:
1. General Administration of Construction Contract. Consult with OWNER; transmit instructions to the
CONTRACTOR; and act as OWNER's representative as provided in the General Conditions. The
extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said
Page 3 of 7 Pages
(Exhibit A -- ENGINEER's Services)
General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All
of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority
to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and
said General Conditions except as otherwise provided in writing.
2. (Modified) Selecting Independent Testing Laboratory. Assist OWNER in the selection of an
Independent testing laboratory to perform necessary services, if any.
3. Pre- Construction Cor#erence. Participate In a Pre-Construction Conference prior to commenoement
of Work at the Site if not included in the Contractor's bid.
4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating
the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed.
S. Visits to Site and Observation of Consmrctton. In connection with observations of Contractor's work
while it is in progress:
a. (Modified) Make weekly visits to the Site and other visits to the Site at intervals appropriate to
the various stages of construction, including attendance at all concrete form installation, pump
and piping set up and other critical events during construction of the lift station structure;
interpret drawings and specifications; review shop drawings, material and equipment tests and
start-ups, to verify Contractor's payment requests, and as ENGINEER and/or OWNER deems
necessary, in order to observe as an experienced and qualified design professional the progress
and quality of the Work. Such visits and observations by ENGINEER, and the Resident Project
Representative, if any, are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspecdons of Contractor's work in progress
beyond the responsibilities specifically assigned to ENGINEER In this Agreement and the
Contract Documents, but rather am to be limited to spot checking, selective sampling, and similar
methods of general observation of the Work based on ENGINEER's exercise of professional
judgment as assisted by the Resident Project Representative, if any. Based on information
obtained during such visits and such observations, ENGINEER will determine if Contractor's
work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep
OWNER informed ofthe progress of the Work
b. The purpose of ENGINEER's visits to, and representation by the Resident Project
Representative, If any, at the Site, will be to enable ENGINEER to better carry out the duties and
responsibilities assigned to and undertaken by ENGINEER during the Construction Phase, and,
in addition, by the exercise of ENGINEER's efforts as an experienced and qualified design
professional, to provide for OWNER a greater degree of confidence that the completed Work
will substantially conform to the Contract Documents and that the Integrity of the design concept
of the completed Project as a fimcdoning whole as indicated in the Contract Documents has been
implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a
result of such observations of Contractor's work in progress, supervise, direct, or lave control
over Contractor's work, nor shall ENGINEER have authority over or responsibility for the
means, methods, techniques, sequences, or procedures of construction selected by Contractor, for
safety precautions and programs incident to Contractor's work, or for any failure of Contractor to
comply with Laws and Regulations applicable to Contractor's furnishing and performing the
Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor
assumes responsibility for any Contractor's failure to famish and perform its work in accordance
with the Contract Documents.
6. (Modified) Defective Work Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress If, on the basis of such observations, ENGINEER believes that such
work will not produce a completed Project that substantially conforms to the Contract Documents or
Page 4 of 7 Pages
(Exhibit A -- ENGINEER's Services)
Oat it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
7. ClarUlcadons and Interpretations, Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from the
Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
S. Change Orders and Work Change Directives. 'Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action In respect to Shop
Drawings and Samples and otha data which Contractor Is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the design
concept of the completed Project as a functioning whole as indicated In the Contract Documents.
Such reviews and approvals or other action will not extend to means, methods, techniques, sequences
or procedures of construction or to safety precautions and programs incident thereto. ENGINEER
has an obligation to meet my Contractor's submittal schedule that has earlier been acceptable to
ENGINEER.
10. Subvtltutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A201 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contracmes, work as deemed
reasonably necessary, and receive and review all certificates of Inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. ENOINEER's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. ENGINEER shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
Interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality
to OWNER or C nt ractor.
13. Applications for Payment. Based on ENGINEEWs observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
dotxrmentation:
a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER's representation
to OWNER, based on such observations and review, that, to the best of ENOINEER's
knowledge, information and belief, Contractor's work has progressed to the point indicated, the
quality of such work Is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the Contract Documents and to any other
qualifications stated in the recommendation), and the conditions precedent to Contractor's being
entitled to such payment appear to have been fulfilled In so far as it Is ENGINEER's
responsibility to observe Contractor's work.
Page 5 of 7 Pages
(Exhibit A — ENGINEER's Services)
b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as it
is performed and furnished have been exhaustive, extended to every aspect of Contractor's work
in progress, or involved detailed Inspections of the Work beyond the responsibilities specifically
assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's
review of Contractor's work for the purposes of recommending payments nor ENGINEER's
recommendation of any payment including final payment will impose on 'ENGINEER
responsibility to supervise, direct, or control Contractor's work in progress or for the means,
methods, techniques, sequences, or procedures of construction or safety precautions or programs
incident thereto, or Contractor's compliance with Laws and Regulations applicable to
Contractor's furnishing and performing the Work It will also not impose responsibility on
ENGINEER to make any examination to ascertain how or for what purposes Contractor has used
the moneys paid on account of the Contract Price, or to determine that title to any portion of the
work in progress, materials, or equipment has passed to OWNER free and clear of any liens,
claims, security interests, or encumbrances, or that there may not be other matters at issue
between OWNER and Contractor that might affect the amount that should be paid.
14. Contractor's Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. Engineer will compile this
information as provided by Contractor, and deliver three (3) copies of the same to OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and
required by the Contract Documents, certificates of Inspection, tests and approvals, Shop Drawings,
Samples and other data approved as provided under paragraph A1.04A9, and the annotated record
documents which are to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such ENGINEER's review will be limited as provided in
paragraph A1.04A9.
o. ENGINEER shall transmit these documents to OWNER within thirty days of receipt of documents
from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved
by the OWNER showing appropriate record Information based on Project annotated record
documents received from Contractor.
15. (Modified) Final Notice of Acceplablio of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that ENGINEER may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work') that to
the best of ENGINEER's knowledge, information and belief and upon the exercise of ENGINEER'S due
diligence, the Work is acceptable and is in compliance with the Contract Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.02.C,
Construction Phase services may be rendered at different times in respect to the separate contrails.
C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, supplier:, or of any other individual or entity performing or
furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or
famish the Work in accordance with the Contract Documents.
Page 6 of 7 Pages
(Exhibit A -- ENGINEEWs Services)
PART 2 -- ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorhwlon in Advance
Not Included
A2.02 RequiredAdditionalServica
Not Included
Page 7 of 7 Pages
(Exblbk A — ENGINEER's Services)
This Is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to Include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide ENGINEER with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER
will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms,
conditions, and related documents for ENGINEER to Include in the Bidding Documents, when applicable.
B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall be construW 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 be at the sole discretion of the OWNER.
G (Modified) Following ENGINEER's assessment of initially- available Project information and data and upon
ENGINEER's written request, furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services, if any.
1. (Deleted).
2. (Deleted).
3. (Deleted).
4. (Deleted).
S. (Deleted).
6. (Deleted).
D. (Deleted).
E. (Modified) Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for ENGINEER to enter upon public and private
property as required for ENGINEER to perform services under the Agreement.
0. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by ENGINEER (including obtaining advice of an attorney, insurance counselor, and other advisors
Page 1 of 2 Pages
(Exhibit B —OWNER's Responsibilities)
or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions
pertaining thereto.
H. (Deleted).
1. (Deleted).
J. Advise ENGINEER of the Identity and scope of services of any Independent consultants employed by
OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value engineering, and eonstructability review.
K. Deleted
L. Deleted
M. Deleted
N. Deleted
Page 2 of 2 Pages
(Exhibit B — OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Payments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 — PAYMENTS TO THE ENGINEER
C4.01 For Baste Services Having R Determined
Scope
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A as follows:
1. (Modified) A lump sum amount of
559.000.00. This amount includes all
reimbursable expenses and the ENGINEER shall
not be entitled to receipt of any reimbursable
expenses under this Agreement. This amount,
however, does not include those Engineer's
Consultant's charges if provided for below in this
Article 4, Subparagraph C4.05. The fee will be
distributed once a month based upon the
percentage of completion of each of the phases
as determined by the OWNER in the following
amounts, which amounts Include any multiplier.
Design Phase .............. ........................$34,000
Bidding/Negodation Phase ................$ 2,000
Construction Phase ............................ S23,000
2. (Modified) ENGINEER may with the
consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rcadeved, but shall not exceed the total lump sum
amount unless approved in writing by the
OWNER.
3. The cost not to exceed includes
compensation for ENGINEER's services and
services of ENGINEER's Consultants (with the
exception of those outlined in paragraph C4.05),
if any. Appropriate amounts have been
Initial:
OWNER
ENGINEER
incorporated in the cost not to exceed to account
for labor, overhead, and profit.
4. Deleted.
5. (Modified) The portion of the amount
billed for ENGINEER's services will be based
upon total services actually completed during the
billing period, which shall be a calendar month.
Invoices shall be tendered no more often than
once a month for all of the services performed
during the applicable month.
C4.02 For Basic Services Having An Ulydetermined
Scope — Direct Labor Costs Times a Factor
Method oftayment
A. (Deleted).
C4.03 For Additional Services
A. OWNER shall pay ENGINEER for
Additional Services as follows:
1. (Modified) General. No Additional
Services shall be preformed without the prior
written consent of the Owner.
2. (Deleted).
C4.04 For Reimbursable Expenses
A. (Deleted).
B. (Deleted).
C. (Deleted).
D. (Deleted).
E. (Deleted).
Page 1 of 2 Pages
(Exhibit C • Basic Services With Determined Scope -- Cost not to exceed Method)
C4.05 For ENGINEER 's Consultant's Charges
A. (Modified) Whenever compensation to
ENGINEER herein is stated to include charges of
ENGINEER's Consultants, those charges shall be the
amounts billed by ENGINEER's Consultants to
ENGINEER times a Factor of LUO. The consultant
charges shall not exceed the following amounts
specified for each of the following servicm 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.
Survey............... ..............................$ 8,000
Geotechnical ...... ..............................$ 8,000
C4.06 Dkvct Labor Casts
A. (Deleted).
B. (Deleted).
C4.07 Factors
A. (Deleted).
B. (Deleted).
C4.08 Other Provisions Concerning Payment
A. (Deleted).
Page 2 of 2 Pages
(Exhibit C - All Other Services/Charges — Lump Sum Method of Payment)
This is EXMBIT E, consisting of 2 pages,
referred to in and part of the Agreement
between OWNER and ENGINEER for
Professional Services dated
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Conduction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:
And To:
OWNER
CONTRACTOR
Initial:
OWNER
ENGINEER
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
By:
Title:
Dated:
Page 1 of2Pages
(Exhibit E — Notice of Acceptability of Work)
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABII.iW OF WORK
The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of ENGINEER.
3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been
employed by OWNER to perform or furnish during construction of the Project (including observation of the
CONTRACTOR's work) under ENGINEER's Agreement with OWNER and applies to facts that are within
ENGINEER's knowledge or could or should have been ascertained by ENGINEER as a result of carrying out
the responsibilities specifically assigned to ENGINEER under ENGINEER's agreement with OWNER.
S. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Construction
Contract nor an assumption of responsibility for any failure of the Contractor to furnish and perform the work
thereunder in accordance with the Contract documents, unless ENGINEER knew or should have known of such
failure and failed to notify the Owner of such failure and take appropriate action so that the same were corrected and
brought into compliance with the Contract Documents.
Page 2 of 2 Pages
(Exhibit E —Notice of Acceptability of Work)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
06.05 Insurance
Throughout the term of this Agreement, the ENGINEER at its own expense shall purchase, maintain and keep in
force and effect insurance against claims for injuries to or death of persons or damages to property which may arise
out of or result from the ENGINEER's operations and/or performance of the work under this Agreement, whether
such operations and/or performance be by the ENGINEER, its agents, representatives, volunteers, employees or
subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them
may be liable.
The ENGINEER's insurance coverage shall be primary Insurance with respect to the OWNER, its officers, agents
and employees. Any insurance or self - insurance maintained by the OWNER, Its officials, agents and employees
shall be considered in excess of the ENGINEER's insurance and shall not contribute to it. Further, the ENGINEER
shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish
separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all
of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts required
In this contract:
Commercial General Liability (COL)
General Aggregate: $2,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: 51,000,000
Per Occurrence: $500,000
a Coverage shall beat least as broad as ISO CG 00 0212 07
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for revlew and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto." ,
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors tit Omissions (E&O)
Limit: $500,000
a For all engineers, and/or design companies.
b. Occurrence form is acceptable.
c. Coverage will be in force for one (1) year after project is completed.
Page 1 of 2 Pages
(Exhibit G - Insurance)
Upon execution of this contract, ENGINEER shall fife with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has
been given to the OWNER via certified mail, return receipt requested.
The ENGINEER shall also file with the OWNER valid Certificates of insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of B+ :VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
c. Liability policies will be on occurrence form.
d. The 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 the OWNER, cerdfled copies of all insurance policies and/or certificates of
Insurance shall be fumished to the OWNEWs representative. Certificates of insurance showing evidence of
Insurance coverage shall be provided to the OWNER's representative prior to execution of this agreement.
L Upon request of and without cost to the OWNER, loss nos (claims listing) of any and/or all insurance coverage
shall be fumished to the OWNER's representative.
Page 2 of 2 Pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
past of the Agreement between OWNER and ENGINEER
for Professional Services dated
Initial:
OWNER
ENGINEER
ENGINEER AGREES TO AND SHALL INDEMNIFY AND HOLD
HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS,
AND EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER")
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF
EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION,
COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR
DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY
OR FOR ANY BREACH OF CONTRACT TO THE EXTENT
ARISING OUT OF OR IN CONNECTION WITH AN ACT OF
NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
ENGINEER OR THE ENGINEER'S AGENT, CONSULTANT
UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH
THE ENGINEER EXERCISES CONTROL (COLLECTIVELY
ENGINEER'S PARTIES). IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH ENGINEER AND OWNER,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY ENGINEER TO INDEMNIFY AND PROTECT
OWNER FROM THE CONSEQUENCES OF ENGINEER'S
PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE
NEGLIGENCE AS WELL AS THE ENGINEER'S PARTIES'
INTENTIONAL TORTS, INTELLECTUAL PROPERTY
INFRINGEMENTS, AND FAILURES TO MAKE PAYMENTS
ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS THAT
IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF
ANY PERSON OTHER THAN THE ENGINEER'S PARTIES. IN
THE EVENT THAT ANY ACTION OR PROCEEDING IS
BROUGHT AGAINST THE OWNER FROM WHICH THE
OWNER IS INDEMNIFIED ENGINEER FURTHER AGREES
Page I of 2 Pages
(Exhibit K - Indemnification)
AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL
SURVIVE THE TERMINATION AND /OR EXPIRATION OF THIS
AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have granted
by the terms of this Contract or any other contract or agreement, any charter, or
applicable state law. Nothing herein shall be construed so as to limit or waive
OWNER'S sovereign immunity. ENGINEER assumes full responsibility for its
work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and/or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with ENGINEER's work to be performed hereunder.
This release shall apply with respect to ENGINEER's work regardless of whether
said claims, demands, and causes of action are covered in whole or in part by
Insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and/or expiration of this A reement.
Page 2 of 2 Pages
(Exhibit K - Indemnification)