Ordinance No. 12,441ORDINANCE NO.12.441
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS.
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT
WITH DANNENBAUM ENGINEERING CORPORATION FOR ENGINEERING
SERVICES ASSOCIATED WITH THE CEDAR CROSSING ELEVATED STORAGE
TANK PROJECT;AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN
AN AMOUNT NOT TO EXCEED TWO HUNDRED FIFTY-TWO THOUSAND
THREE HUNDRED FORTY-ONE AND NO/100 DOLLARS (5252,341.00);MAKING
OTHER PROVISIONS RELATED THERETO;AND PROVIDING FOR THE
EFFECTIVE DATE THEREOF.
*************************************************************************************
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,TEXAS:
Section 1:ThattheCityCouncil of theCity of Baytown,Texas,herebyauthorizesand
directstheCityManagertoexecuteandtheCityClerktoattesttoaProfessionalServicesAgreementwith
Dannenbaum Engineering Corporation for engineering services associatedwiththeCedarCrossing
Elevated Storage Tank Project.Acopyofthe agreement is attached hereto,marked Exhibit "A,"and
madeapart hereof forallintentsandpurposes.
Section2:ThattheCityCouncil of theCity of Baytownauthorizes payment to
Dannenbaum Engineering Corporation inan amount nottoexceedTWO HUNDRED FIFTY-TWO
THOUSAND THREE HUNDRED FORTY-ONE AND NO/100 DOLLARS ($252,341.00)for
engineeringservicesinaccordancewiththeagreementauthorizedinSectionIhereinabove.
Section3:ThattheCityManagerisherebygrantedgeneralauthoritytoapproveadecrease
oranincreaseincostsbyFIFTYTHOUSANDAND NO/100 DOLLARS($50,000.00)orless,provided
thattheamount authorized inSection2 hereof maynotbeincreasedbymorethan twenty-five percent
(25%).
Section 4:This ordinance shall takeeffect immediately fpm andafterits passage bythe
City Council of the City of Baytown.
INTRODUCED,READ and PASSED by the affirmative/oteipf the City Council of the City of
Baytown this the 12"'dayof December.2013.
ATTEST:
—IlOLk^
iTICIA BRYSCH,CrtyClerk
APPROVED AS TO FORM:
*^-t^*--c
NACIO RAMIREZ,SR.,City A/tArncy
R:\KaieinFilck\City Council\Oidirtanccs\2013\l>cccmbcr l2\Ainhoii/cl)anncbaumP.n)iinccfinyl,iofcsstonaISen'icesAgrecment41MillionGal!oriCoiiiposiicl:STPiojcci doc
EXHIBIT A
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THISAGREEMENTeffectiveasofthe _day of December,2013 ("Effective Date").
Between
City of Baytown ("OWNER")
and
DANNENBAUM ENGINEERING CORPORATION ("ENGINEER")
OWNER intends to contract to provide professional engineering for preliminary engineering,design,bid and
construction phase services for the Cedar Crossing Elevated Storage Tank Project,which will be located at a site to
be ftilly determined near the corner of Highway 99 (the Grand Parkway)and Koppel Road on the east side of town.
OWNER and ENGINEER in consideration oftheirmutual covenants asset forth herein agree as follows:
StandardForm of Agreement
BetweenOwnerandEngineerfor Professional Services
Page1 of 12
TABLE OF CONTENTS Piee
ARTICLE1-SERVICESOFENGINEER 3
1.01 Scope 3
ARTICLE2-OWNER'S RESPONSIBILITIES 3
2.01 General 3
ARTICLE3-TIMESFOR RENDERING SERVICES 3
3.01 General 3
3.02 Suspension 3
ARTICLE 4-PAYMENTS TO ENGINEER 3
4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER 3
4.02 Other Provisions Concerning Payments 3
ARTICLE5-OPINIONS OFCOST 4
5.01 Opinions of Probable Construction Cost 4
5.02 Designing toConstruction Cost Limit 4
5.03 Opinions of Total Project Costs 4
!
ARTICLE 6-GENERAL CONSIDERATIONS 4 I
6.01 Standards of Performance 4
6.02 Authorized Project Representatives 5 j
6.03 Design without Construction Phase Services 5
6.04 Use of Documents 5 I
6.05 Insurance 6 !
6.06 Termination 6 \
6.07 Controlling Law 7 j
6.08 Successors,Assigns,and Beneficiaries 7 \
6.09 Dispute Resolution 7
6.10 Hazardous Environmental Condition 7
6.11 Allocation ofRisks 8
6.12Notices 8
6.13Survival 8
6.14 Severability 8
6.15Waiver 8
6.16 Headings 8
ARTICLE 7-DEFINITIONS 8
7.01DefinedTerms 8
ARTICLE 8-EXHIBITSANDSPECIALPROVISIONS 11
8.01ExhibitsIncluded U
8.02 Total Agreement 11
StandardForm of Agreement
Between Owner andEngineerforProfessional Services
Page2 of 12
ARTICLE 1-SERVICES OF ENGINEER
1.01 Scope
A.ENGINEER shall provide the Basic and Additional
Servicessetforthhereinandin Exhibit A.
B.(modified)Upon issuance ofa notice to proceed by
the OWNER,ENGINEER is authorized to begin Basic
Services assetforthin Exhibit A.
C.(Deleted).
ARTICLE 2-OWNER'S RESPONSIBILITIES
2.01 General
A.OWNER shall havethe responsibilities set forth
herein andin 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 specified
in Exhibit A.ENGINEER'S obligation to render services
hereunder willbe for whatever period necessary for the final
completion ofsaid services.
B.(Deleted).
C.(Modified)For purposes of this Agreement the term
"day"meansa calendar dayof24 hours.
3.02 Suspension
A.(Deleted)
B.(Modified)If ENGINEER'S services are delayed or
suspended in whole orin 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 officers,agents,or employees.If
ENGINEER causes or contributes tothe delay or suspension,
ENGINEER shall haveno right toseek additional
compensation.
ARTICLE 4 -PAYMENTS TO ENGINEER
4.01MethodsofPaymentforServices
ReimbursableExpensesof ENGINEER
and
A.ForBasicServices.OWNER shallpayENGINEER
for Basic Services performed or furnished under Exhibit A,
Part 1,assetforthinExhibitC.
B.ForAdditionalServices.OWNER shallpay
ENGINEERforAdditionalServices performed or furnished
under Exhibit A,Part 2,asset forth inExhibitC.
C.(Modified)For Reimbursable Expenses.In
addition to payments provided for in paragraphs 4.01.A and
4.01.B,OWNER shall pay ENGINEER for Reimbursable
Expenses incurred by ENGINEER and ENGINEER'S
Consultants asset forth inExhibitC.However,all expenses
associated with meals and lodging mustbe approved in
writing by OWNER prior to ENGINEER incurring any
expense associated therewith;otherwise,the parties hereto
agree and understand that OWNER shall not be liable and
ENGINEERshallnotmakeaclaim against OWNERforany
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 willbe submitted toOWNER monthly via mail or email
by ENGINEER,unless otherwise agreed.ENGINEER shall
supply detailed back-up information along with each invoice
in order for theOWNERtoeffectively evaluate the fees and
charges.The amount billed in each invoice will be calculated
asset forth inExhibitC.Invoices shall be received bythe
OWNERnot later than sixty (60)days from the date the
ENGINEER and/or its subconsultants perform the services or
incur the expense.Failure by ENGINEER to comply with the
requirements herein ina timely manner with this requirement
shall resultintheENGINEER'Sinvoicebeingdenied.
B.(Modified)Payment of Invoices.Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessaiy 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
ENGINEERwillaccrueinterestattherateset forth in
Section 2251.025 of theTexasGovernmentCode(orthe
StandardForm of Agreement
BetweenOwnerand Engineer for Professional Services
Page3 of 12
maximum rate of interest permitted bylaw,if less)afterthe
30th day.ENGINEER may after giving seven days'written
notice toOWNER suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services,expenses,and other related charges.However,itis
expressly understood and agreed that ENGINEER 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 ENGINEER will not
suspend services under the agreement on account ofa
disputed invoice oron account of monies withheld.All
payments will be credited first to principal and then to
interest.
C.Disputed Invoices.In the event ofa disputed or
contested invoice,onlythat portion so contested maybe
withheld from payment,and the undisputed portion will be
paid.
D.Payments Upon Termination.Inthe event of any
termination undersection6.06,ENGINEERwillbe entitled
to invoice OWNER and willbe paid in accordance with
Exhibit C for all services performed or furnished and all
Reimbursable Expenses incurred through the effective dale of
termination provided all instruments of service have been
tendered to the OWNER..
2.(Deleted)
E.(Modified)Records of ENGINEER'S Costs.
Records of ENGINEER'Scosts 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 atnocosttoOWNER.
F.Legislative Actions.In the event of legislative
actions aftertheEffectiveDateof the Agreement byanylevel
of government that impose taxes,fees,or costs on
ENGINEER'Sservicesorothercostsin connection withthis
Project or compensation therefor,such new taxes,fees,or
costs shall be invoiced to and paid byOWNERasa
Reimbursable Expense to which a Factor of 1.0 shall be
applied.Should such taxes,fees,or costs be imposed,they
shallbeinadditiontoENGINEER'S estimated total
compensation.
G.(Added)Indebtedness.If ENGINEER,at any lime
during the term of this agreement,incurs a debt,as the word
isdefinedinsection2-662 oftheCode of Ordinances of the
City of Baytown,it shall immediately notifytheOWNER'S
Director of Finance in writing.IftheOWNER'S Director of
Finance becomes awarethatthe ENGINEER hasincurreda
debt,theOWNER'S Director of Finance shall immediately
notify the ENGINEER in writing.If the ENGINEER does
not pay the debt within 30 days of either such notification,
theOWNER'S Director of Finance maydeduct funds inan
amount equal to the debt from any payments owed to the
ENGINEER under this Agreement,and the ENGINEER
waivesany 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 tobe made on the 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,
sinceENGINEERhasnocontroloverthecost of labor,
materials,equipment,or services furnished by others,orover
the Contractor's methods of determining prices,orover
competitive bidding or market conditions,ENGINEER
cannot and does not guarantee that proposals,bids,or actual
Construction Costwillnotvary 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 inExhibitB.
5.02 Designing toConstructionCostLimit
A.(Deleted).
5.03 OpinionsofTotal 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
ENGINEER under this Agreement willbethe care and skill
ordinarily used by members of ENGINEER'S profession
practicing under similar circumstances at the same time and in
thesamelocality.
B.(Modified)ENGINEER shall be responsible for the
technical accuracy of its services and documents resulting
therefrom,andOWNER shall notbe responsible for
discovering deficiencies therein.ENGINEER shall correct
suchdeficiencieswithout additional compensationexceptto
theextent such action is directly attributable to deficiencies in
StandardForm ofAgreement
BetweenOwnerandEngineer for Professional Services
Page4 of 12
OWNER-furnished information upon which ENGINEER is
authorized to rely asprovidedinSection 6.0I.E.
C.ENGINEER shall perform or furnish professional
engineering and related services in all phases ofthe Project to
which this Agreement applies.ENGINEER shall serve as
OWNER'S prime professional for the Project.ENGINEER
may employ such ENGINEER'S Consultants as ENGINEER
deems necessary to assist inthe performance or furnishing of
the services.ENGINEERshall notbe required to employ any
ENGINEER'S Consultant unacceptable toENGINEER.
D.ENGINEERandOWNER shall complywith
applicable Laws or Regulations and OWNER-mandated
standards.This Agreement is based onthese requirements as
ofits Effective Date.Changes to these requirements after the
Effective Date of this Agreement maybethe basis for
modifications toOWNER'S responsibilities orto
ENGINEER'S scope of services,timesof performance,or
compensation.
E.(Modified)OWNER shall be responsible for,and
ENGINEER mayrely upon,the accuracy and completeness
of all requirements,programs,instructions,reports,data,and
other information furnished byOWNERto ENGINEER
pursuant to this Agreement,unless expressly stated or
communicatedotherwiseby OWNER.ENGINEERmayuse
such requirements,reports,data,and information in
performing or furnishing services under this Agreement.
F.OWNER shallmakedecisionsandcanyoutitsother
responsibilities ina timely manner and shall bear all costs
incident thereto soasnottodelaythe services of
ENGINEER.
G.Priortothecommencement of the Construction
Phase,OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E,"Notice of
Acceptability of Work,"orof any other notice or certification
thatENGINEERwillbe requested toprovidetoOWNERor
third parties in connection with the Project.OWNER and
ENGINEER shall reach agreement onthe terms of any such
requested notice or certification,and OWNER shall authorize
such Additional Servicesasare necessary to enable
ENGINEER to provide the notices orcertifications requested.
H.(Modified)ENGINEER shall notbe required to sign
any documents,no matter by whom requested,that would
result inENGINEER'Shavingtocertify,guarantee or
warrant theexistence of conditionswhoseexistence
ENGINEER cannot ascertain;provided,that ENGINEER has
exercised due diligence andwasnot otherwise required to
certify,guarantee or warrant the existence of such conditions.
1.During the Construction Phase,ENGINEER shall
not supervise,direct,orhave control over Contractor's work,
nor shall ENGINEER have authority overor responsibility
for the means,methods,techniques,sequences,or procedures
of construction selected by Contractor,for safety precautions
and programs incident tothe Contractor's work in progress,
nor for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and
performing theWork.
J.(Modified)ENGINEER neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance withthe Contract Documents.However,nothing
contained in this paragraph shall be construed so as to absolve
ENGINEER from liability for any such failure about which
ENGINEERkneworshouldhaveknownexistedinthe
exercise of ENGINEER'S servicesunderthis Agreement.
K.(Modified)ENGINEER shall notbe responsible for
the acts or omissions of any Contractors),subcontractor or
supplier,orof any of the Contractor's agents oremployees or
any other persons (except ENGINEER'S own employees and
its consultants forwhichitis legally liable)attheSiteor
otherwise furnishing or performing any of the Contractor's
work;or for any decision made on interpretations or
clarifications of the Contract DocumentsgivenbyOWNER
without consultation and advice ofENGINEER.
L.(Modified)The General Conditions for any
construction contract documents prepared hereunder are tobe
the Standard Form of Agreement between Owner and
Contractor and as approved byOWNERin writing.
6.02 Authorized Project Representatives
A.Contemporaneous withthe execution of this
Agreement,ENGINEER and OWNER shall designate
specific individuals to act as ENGINEER'S and OWNER'S
representatives with respect tothe services tobe performed or
furnished by ENGINEER and responsibilities of OWNER
under this Agreement.Such individuals shall have authority
to transmit instructions,receive infonnation,and render
decisions relative tothe Project on behalf of each respective
party.
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
StandardForm of Agreement
BetweenOwnerand Engineer for Professional Services
Page5 of 12
theInstruments of Service.The ENGINEER shallobtain
similar interests fromthe OWNER andthe ENGINEER'S
consultants consistentwiththisAgreement.Withinseven
days of any termination or expiration of this Agreement,the
ENGINEER shall be required to tender toOWNERall
Instruments of Service;provided OWNER has paid all
monies,excluding any disputed amount,due and owing to
ENGINEER in accordance withthis Agreement.Withsuch
ownership interest,itis expressly understood by the parties
hereto thattheOWNERmayusethe Instruments of Service
for any purposes which theOWNERsees fit,including,but
not limited to,subsequent construction,reconstruction,
alteration,and/or repairs of the Project.Asa condition tothe
OWNER'S use of theInstruments of Service,the OWNER
hereby expressly agrees toremovethe ENGINEER'S name
andallreferencestothe ENGINEER,anditsconsultantsfrom
the Documents.TheOWNER hereby releases anyand all
claimswhichthe OWNER couldmake arising out of orin
connection withanyreuseofthe documents bythe OWNER.
Thisrelease of claimsforthematterscoveredinthis
Paragraph 6.04.A shall beforthebenefit of the ENGINEER,
its officers,and employees and sub-consultnnts,aswell as
theirsuccessorsandassigns.
B.(Modified)Copies of OWNER-fumished data that
may be relied upon by ENGINEER are limited tothe printed
copies that are delivered to ENGINEER pursuant to Exhibit B
unless otherwise expressly stated or communicated by
OWNER.Filesin electronic media format of text,data,
graphics,or of other types that are furnished by OWNER to
ENGINEERareonlyforconvenience of ENGINEER.Any
conclusionorinformationobtainedorderivedfromsuch
electronic files will be atthe user's sole risk.
C.Copies of Documents thatmaybe relied upon by
OWNER are limited tothe printed copies (also known as hard
copies)that are signed or sealed bythe ENGINEER.Files in
electronic media format of text,data,graphics,orofother
types that are furnished by ENGINEER toOWNERare only
forconvenience of OWNER.Anyconclusionor information
obtainedorderivedfromsuch electronic fileswillbeatthe
user's sole risk.
D.Because datastoredin electronic mediaformatcan
deteriorate orbemodified inadvertently orotherwisewithout
authorization of thedata's creator,theparty receiving
electronic files agrees thatitwill perform acceptance testsor
procedures within 60 days,after which the receiving party
shall be deemed tohave accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detectedwithinthe60-day acceptance period.ENGINEER
shallnotbe responsible tomaintaindocumentsstoredin
electronicmediaformatafter acceptance byOWNER.
E.When transferring documents in electronic media
format,ENGINEER makesno representations asto long-term
compatibility,usability,or readability of documents resulting
from theuse of software application packages,operating
systems,or computer hardware differing from those used by
ENGINEER atthe beginning ofthis Project.
F.(Modified)Anyuse of the Documents onany
extension ofthe Project oronany other project shall beat
OWNER'Ssoleriskand OWNER hereby releases
ENGINEER from any liability associated solely withthe
reuse ofthe Documents.
G.If there isa discrepancy between the electronic files
andthehardcopies,thehardcopiesgovern.
H.Any verification or adaptation of the Documents for
extensions ofthe Project or for any other project will entitle
ENGINEER to further compensation at rates tobe agreed
upon byOWNER and ENGINEER.
6.05 Insurance
A.ENGINEER shall procure and maintain insurance as
setforthinExhibitG,"Insurance."
B.Not used.
C.Not used.
D.Not used.
E.Not used.
F.Atany time,OWNERmay 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,differentlimits,or
revised deductibles forsuch periods of timeas requested by
OWNER,andExhibitGwillbe supplemented to incorporate
these requirements.
6.06 Termination
A.(Modified)The obligations hereunder may be
terminated:
StandardForm of Agreement
BetweenOwnerand Engineer for Professional Services
Page6 of 12
1.For cause,
a.(Modified)By either party upon 30 days
writtennoticeintheevent of failure bytheother
party to perform in accordance withthe terms hereof
through no fault of the terminating party;or
b.ByENGINEERuponsevendays written
notice if ENGINEERisbeing requested by
OWNERto furnish or perform services contrary to
ENGINEER'S responsibility asa licensed
professional.
c.Notwithstanding the foregoing,this
Agreement will not terminate as a result of such
substantial failure ifthe 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
andtothe extent suchsubstantialfailurecannotbe
reasonably cured within such 30 day period,and if
such party has diligently attempted to cure the same
and thereafter continues diligently tocurethesame
then thecure period provided for herein shall extend
up to,but inno case more than 60 days after the date
of receipt ofthe notice.
2.For convenience byOWNEReffective upon the
receipt of notice by ENGINEER.
B.Not used.
6.07 Controlling Law
A.This Agreement istobe governed by the law of the
state in which die Project is located.Venue for all purposes
shallbein Harris County,Texas.
6.08Successors,Assigns,andBeneficiaries
A.OWNER andENGINEEReachisherebyboundand
the partners,successors,executors,administrators and legal
representatives of OWNER and ENGINEER (and to the
extent permitted by paragraph 6.08.B the assigns of OWNER
and ENGINEER)are hereby bound tothe other party to this
Agreement andtothe partners,successors,executors,
administrators and legal representatives (and said assigns)of
such other party,in respect of all covenants,agreements and
obligations ofthisAgreement
B.Neither OWNER norENGINEERmay assign,
sublet,or transfer any rights under or interest (including,but
without limitation,moneys that are due ormay become due)
inthis Agreement without the written consent of the other,
except tothe extent that any assignment,subletting,or
transfer is mandated or restricted bylaw.Unless specifically
stated tothe contrary inany written consent toan assignment,
no assignment will release or discharge the assignor from any
dutyor responsibility underthis Agreement.
C.Unless expressly provided otherwise in this
Agreement:
1.Nothing in this Agreement shall beconstrued to
create,impose,or give rise to any duty owed by
OWNERorENGINEERtoany Contractor,Contractor's
subcontractor,supplier,other individual or entity,orto
anysurety for or employee of any of them.
2.AH duties and responsibilities undertaken
pursuant to this Agreement will be for the sole and
exclusivebenefit of OWNER andENGINEERandnot
for the benefit of any other parry.TheOWNER agrees
that the substance of the provisions of this paragraph
6.08.C shall appear inthe Contract Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A.OWNER represents to ENGINEER that tothe 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 locatedatorneartheSite,including
type,quantity and location.
C.(Modified)If a Hazardous Environmental
Condition is encountered or alleged,ENGINEER shall have
the obligation to notify OWNER onor before the next
businessday of thesame.
D.Itis acknowledged by both parties that
ENGINEER'S scope of services does not include any services
relatedtoaHazardousEnvironmentalCondition.Intheevent
ENGINEER orany other party encounters a Hazardous
Environmental Condition,ENGINEERmay,atitsoption and
without liability for consequential or any other damages,
suspend performance of services onthe portion of the Project
affected thereby until OWNER:(i)retains appropriate
specialist consultant(s)or conlractor(s)to identify and,as
appropriate,abate,remediate,or remove the Hazardous
Environmental Condition;and(ii)warrants thattheSiteisin
full compliance with applicable Laws and Regulations.
StandardForm of Agreement
BetweenOwnerandEngineer for Professional Services
Page7 of 12
E.OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
ENGINEERisnotandshallnotbe required tobecomean
"arranger,""operator,""generator,"or "transporter"of
hazardous substances,asdefinedinthe Comprehensive
Environmental Response,Compensation,and Liability Actof
1990 (CERCLA),which are ormaybe encountered ator near
theSiteinconnectionwith ENGINEER'S activitiesunderthis
Agreement.
F.If ENGINEER'S servicesunderthis Agreement
cannot be performed because of a Hazardous Environmental
Condition,the existence of the condition shall justify
ENGINEER'S terminating this Agreement for cause on30
daysnotice.
6.11 Allocation of Risks
A.(Modified)Indemnification.See Exhibit K.
B.(Added)Notwithstanding anything tothe contrary
contained inthis Agreement,theOWNER and ENGINEER
hereby agree that no claim or dispute between theOWNER
and ENGINEER arising out of or relating tothis Agreement
shall be decided by any arbitration proceeding including,
without limitation,any proceeding under the Federal
Arbitration Act(9U.S.C.Sections 1-14),or any applicable
State arbitration statute,including,butnot limited to,the
Texas General Arbitration Act,provided thatintheevent
that the OWNER is subjected to an arbitration proceeding
notwithstanding this provision,ENGINEER consents to be
joined in the arbitration proceeding if ENGINEER'S
presence is required or requested by the OWNER for
complete relief tobe recorded in the arbitration proceeding.
6.12 Notices
A.(Modified)Any notice required under this
Agreement will bein writing,addressed to the appropriate
party atits address onthe signature page and given
personally,or by registered or certified mail postage prepaid,
orbya commercial courier service.Additionally,notices
may be given via facsimile orby electronic mail if such notice
is also given personally,orby registered or certified mail or
byacommercial courier service.All notices shall be effective
upon thedateof receipt.
6.13 Survival
A.(Modified)All express representations,
indemnifications,and limitations of liability included inthis
Agreement will survive its completion or termination for any
reason.
6.14 Severability
A.Any provision or part of the Agreement held to be
voidor unenforceable under any Laws or Regulations shall be
deemed stricken,andall remaining provisions shall continue
tobe valid andbinding upon OWNERand 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 ofthestrickenprovision.
6.15 Waiver
A.Non-enforcement of any provision byeither party
shall not constitute awaiver of that provision,nor shall it
affect the enforceability of that provision or ofthe remainder
ofthisAgreement.
6.16 Headings
A.The headings used inthis Agreement are for general
reference only and donothavespecial significance.
ARTICLE 7-DEFINITIONS
7.01 Defined Terms
A.Wherever used inthis Agreement (including the
Exhibits hereto)and printed with initial or all capital letters,
thetenns listed belowhave 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,orchange
theBiddingDocuments.
2.Additional Serw'ces~The servicestobeperformed
for or furnished toOWNERby ENGINEER in accordance
with Exhibit A,Part2 ofthis Agreement.
3.Agreement-Tbts "Standard Fonn of Agreement
between OWNER andENGINEERfor Professional
Services,"including those Exhibits listed in Article 8 hereof.
4.Application for Payment-The form acceptable to
ENGINEERwhichistobeusedby Contractor in requesting
progress or final payments for die completion of its Work and
which istobe accompanied bysuch supporting
documentation asis required bythe Contract Documents.
5.Asbestos-Any material that contains more than one
percent asbestos and is friable oris releasing asbestos fibers
StandardForm of Agreement
Between Owner and Engineer for Professional Services
Page8 of 12
intotheairabovecurrentactionlevels established bythe
United States Occupational Safety and Health Administration.
6.Basic Services-The servicestobe performed foror
furnished toOWNERby ENGINEER in accordance with
Exhibit A,Part1,of this Agreement.
7.Bid-The offeror proposal ofthe bidder submitted
on the prescribed form setting forth the prices for the Work to
be performed.
8.Bidding Documents-The advertisement or invitation
toBid,instructions to bidders,theBid form and attachments,
the Bid bond,if any,the proposed Contract Documents,and
all Addenda,if any.
9.Change Order—A document recommended by
ENGINEER,which is signed by Contractor andOWNERto
authorize an addition,deletion or revision intheWork,oran
adjustment in the Contract Price orthe Contract Times,issued
onorafterthe Effective Date oftheConstruction Agreement
10.Construction Agreement-Vns written instrument
which is evidence of the agreement,contained inthe Contract
Documents,between OWNER and Contractor covering the
Work.
11.Construction Contracl-The entireand integrated
written agreement between theOWNER and Contractor
concerningtheWork.
12.Construction Cost-Tin costto OWNER of those
portions of the entire Project designed or specified by
ENGINEER.Construction Costdoesnot include costs of
services of ENGINEER 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 Bof this Agreement.
Construction Costisone of theitems comprising Total
ProjectCosts.
13.(Modified)Contract Documents-Documents that
establish the rights and obligations of the parties engaged in
constructionandincludetheConstructionAgreement
between OWNER and Contractor andalldocuments
referenced therein,Addenda (which pertain tothe Contract
Documents),Contractor's Bid (including documentation
accompanying the Bid and any post-Bid documentation
submitted prior tothe notice of award)when attached as an
exhibittothe Construction Agreement,thenoticeto proceed,
the bonds,appropriate certifications,insurance documents
the General Conditions,the Supplementary Conditions,the
Specifications and the Drawings asthe same are more
specifically identified inthe Construction Agreement,
together with all Written Amendments,Change Orders,Work
Change Directives,Field Orders,and ENGINEER'S written
interpretations and clarifications issued onor after the
EffectiveDate of theConstructionAgreement.Approved
Shop Drawings and the reports and drawings of subsurface
and physical conditions are not Contract Documents.
14.Contract Price-Vxe moneys payable byOWNERto
Contractor for completion oftheWorkin accordance with the
Contract Documentsandasstatedinthe Construction
Agreement.
15.Contract Times-Tae numbers of days orthe dates
stated inthe Construction Agreement to:(i)achieve Final
Completion,and (ii)complete the Work so (hat itis ready for
final payment as evidenced by ENGINEER'S written
recommendation of finalpayment.
16.Contractor-An individual orentitywithwhom
OWNER entersintoaConstructionAgreement.
17.Correction Perlod-Tlie timeafter 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 lime as may be
prescribed by Laws or Regulations orby 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 toWork that is unsatisfactory,faulty,or
deficient,in that it does not conform tothe Contract
Documents,or does notmeetthe requirements of any
inspection,reference standard,test,or approval referred to in
the Contract Documents,orhasbeen damaged prior to
ENGINEER'S recommendation of finalpayment.
19.Documents-D&tn,reports,Drawings,Specifications,
Record Drawings,and other deliverables,whether in printed
or electronic medio format,provided or furnished in
appropriate phases by ENGINEER to OWNER pursuant to
this Agreement.
20.Drawings-Thnt part ofthe Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope,extent,and character ofthe Work tobe
performed by Contractor.Shop Drawings are not Drawings
as so defined.
21.Effective Date of the Construction Agreemenl-The
date indicated inthe Construction Agreementonwhichit
becomes effective,but if nosuch date is indicated,it means
StandardForm of Agreement
Between Owner and Engineer for Professional Services
Page9 of 12
thedateonwhichthe Construction Agreement is signed and
delivered bythe last of thetwo parties to sign and deliver.
22.Effective Date of the Agreement-Tae date indicated
inthis Agreement on which it becomes effective,butifno
suchdateis indicated,itmeansthedateonwhichthe
Agreement is signed and delivered bythe last ofthetwo
parties tosign and deliver.
23.ENGINEER'S Con«rfWn«-Individuals orentities
having a contract with ENGINEER to furnish services with
respect to this Project as ENGINEER'S independent
professional associates,consultants,subcontractors,or
vendors.Theterm ENGINEER includesENGINEER'S
Consultants.
24.Field Order-A writtenorderissuedbyENGINEER
which directs minor changes intheWorkbut which does not
involve a change inthe Contract Price orthe 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
subcontractorshavebeenmade,alldocumentationand
warrantieshavebeen submitted,allcloseoutdocuments
havebeen executed and approved bythe OWNER,and the
Project has been finally accepted bythe OWNER.
26.General Conditions-Tbat part of the Contract
Documentswhichsetsforthterms,conditions,and procedures
that govern theWorktobe performed or furnished by
Contractor with respect tothe Project.
27.HazardousEnvironmental Condition-The presence
attheSite of Asbestos,PCB's,Petroleum,Hazardous Waste,
orRadioactive Materials insuchquantitiesor circumstances
that may present a substantial danger to persons or property
exposed thereto inconnection with theWork.
28.HazardousWaste-Trie 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.Laws and Regulations;Laws or Regulalions-Any
and all applicable laws,rules,regulations,ordinances,codes,
standards,and orders of anyandall governmental bodies,
agencies,authorities,and courts having jurisdiction.
30.PCB's-Polychlorinated biphenyls.
31.Petroleum-Petroleum,includingcrudeoilorany
fraction thereofwhichisliquidat 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
withothernon-HazardousWasteandcrudeoils.
32.Radioactive Materials-Source,special nuclear,or
byproduct material as defined by the Atomic Energy Actof
1954 (42 USC Section 2011 et seq.)as amended from time to
time.
33.Record Drawings-The Drawings as issued for
construction onwhichthe ENGINEER,upon completion of
the Work,has shown changes due to Addenda or Change
Orders andotherinfonnationwhichENGINEER considers
significant based on record documents furnished by
Contractor to ENGINEER andwhichwere annotated by
Contractor to show changes made during construction.
34.Reimbursable Expenses-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.Resident Project Representative-The authorized
representative of ENGINEER,if any,assigned to assist
ENGINEER attheSite during the Construction Phase.The
Resident Project Representative willbe ENGINEER'S agent
or employee and under ENGINEER'S supervision.As used
herein,the term Resident Project Representative includes any
assistants of Resident Project Representative agreed toby
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 oftheWorkwillbe judged.
37.Shop Drawings-All drawings,diagrams,
illustrations,schedules,and other data or information which
are specifically prepared or assembled byor for Contractor
and submitted by Contractor to ENGINEER to illustrate some
portion oftheWork.
38.S//e--Lands orareasindicatedintheContract
Documents as being furnished byOWNERupon which the
Work istobe performed,rights-of-way and easements for
access thereto,andsuchother lands furnished byOWNER
whicharedesignatedforuse ofContractor.
39.Specifications-Tbot part of the Contract Documents
consisting of written technical descriptions of materials,
equipment,systems,standards,and workmanship as applied
totheWorkand certain administrative details applicable
thereto.
StandardForm of Agreement
BetweenOwnerandEngineerforProfessionalServices
Page10 of 12
40.Substantial Completion-The timeat which the
Work (ora specified part thereof)has progressed to the point
where,inthe opinion of ENGINEER,the Work (or a
specified part thereof)is sufficiently complete,in accordance
withthe Contract Documents,sothattheWork(ora specified
part thereof)can be utilized for the purposes for which itis
intended.The terms "substantially complete"and
"substantially completed"asapplied to all or part of the Work
referto Substantial Completion thereof.
41.Supplementary Conditions-Vtal part ofthe Contract
Documents whichamendsor supplements the General
Conditions.
42.(Modified)Total Project Coste-The sum of the
Construction Cost,allowances for contingencies,the total
costs of services of ENGINEERorother design professionals
andconsultants,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
thecost ofother services tobe provided by others toOWNER
pursuant to Exhibit B ofthis Agreement.
43.Work-The entire completed construction orthe
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,allas required bythe Contract Documents.
44.Work Change Directive-A written directive to
ContractorissuedonoraftertheEffectiveDate of the
Construction Agreement and signed byOWNER upon
recommendation of the ENGINEER,ordering an addition,
deletion,or revision inthe Work,or responding to differing
or unforeseen subsurface or physical conditions under which
theWorkistobe performed orto emergencies.A Work
Change Directive will not change the Contract Price or the
Contract Timesbutisevidencethatthe parties expect that the
change directed or documented bya Work Change Directive
will be incorporated ina subsequently issued Change Order
following negotiations bythe parties asto its effect,if any,on
the Contract Priceor Contract Times.
45.Written Amendment-A writtenamendment of the
Contract Documents signed byOWNERand Contractor onor
after theEffectiveDate of the Construction Agreement and
normally dealing withthe non-engineering or non-technical
rather than strictly construction-related aspects of theContract
Documents.
ARTICLE 8
PROVISIONS
EXHIBITS AND SPECIAL
8.01 Exhibits Included
A.Exhibit A,"ENGINEER'S Services,"consisting of
nine(9)pages.
B.Exhibit B,"OWNER'S Responsibilities,"consisting
oftwo(2)pagcs.
C.Exhibit C,"Payments to ENGINEER for Services
and Reimbursable Expenses,"consisting oftwo(2)pages.
D.Exhibit D,"Duties,Responsibilities and Limitations
of Authority of Resident Project Representative,"isnot used.
E.Exhibit E,"Notice of Acceptability of Work,"is
consisting oftwo(2)pages.
F.Exhibit F,"Construction Cost Limit,"isnot used.
G.Exhibit G,"Insurance,"consisting oftwo(2)pages.
H.Exhibit H,"Dispute Resolution,"is not used.
I.Exhibit I,"Allocation of Risks,"isnot 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 1to 12
inclusive,together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
ENGINEER and supersedes all prior written or oral
understandings.This Agreement may only be amended,
supplemented,modified,or canceled bya duly executed
written instrument This Agreement along withthe exhibits
shallbereadand construed asthesame Agreement.
StandardForm of Agreement
Between Owner and Engineer for Professional Services
Page 11 of 12
IN WITNESS WHEREOF,the parties hereto have executed this Agreement,the Effective Date of which is
indicatedonpage I.
OWNER:CITY OF BAYTOWN
Signature:
PrintedName:RobertD.Leiper
Title:Citv Manager
DateSigned:
Addressforgiving notices:
P.O.Box 424
Baytown,Texas77522
Designated Representative (paragraph 6.02.A):
Name:Jose A.Pastrana,P.E.
Title:Director of Engineering
PhoneNumber:(281)420-7154
Facsimile Number:(281)420-6586
E-MailAddress:iosc.pastrniia@bavlown.ori'
ENGINEER:DANNENBAUM ENGINEERING
CORPORATION 7 Q
Signature:^{A^a.A^K(fiMy
Printed Name:Wayne G.Ahrens
Ti,le:Executive Vice President
Date Signed:November 25,2013
Addressforgivingnotices:
P.O.Box 22292
Houston,Texas 77227
Designated Representative (paragraph 6.02.A):
Name:CarlD.McConnell,P.E.
Title:Assistant Manager -Public Works Division
PhoneNumber:(713)520-9570
Facsimile Number:(713)533-4111
E-MailAddress:cnri.fflcconneHtfBdaniicnbauin.com
StandardForm of Agreement
Between Owner and Engineer for Professional Services
Page12 of 13
ThisisEXHIBITA,consisting of 9 pages,referred toin and
part of the Agreement between OWNER and ENGINEER
forProfessional Services dated .
Initial:
OWNER.
ENGINEER.
ENGINEER'S Services .
Article 1of 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.
PART1-BASIC SERVICES (Modified)
A1.01 Preliminary Design Phase
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 ofthe 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 meetings with OWNER to receive input into OWNER'S requirements for the
Project and evaluation of potential solutions available to OWNER and to discuss and finalize design
criteria and acquire pertinent information regarding the Project.
6.(Modified)Perform or provide the following additional Preliminary Design Phase tasks or deliverables:
a.Employ and coordinate with project subconsultants and provide a topographic survey,a
geotechnical investigation,and an environmental site assessment of the Project site.
b.Develop asite plan with assistance from the OWNER.
7.(Modified)Prepare a 50%submittal report (the "50 Report")which will contain plan and profile
drawings ofthe existing background and proposed facilities in plan view only,along with the findings,
comparisons of alternatives,and recommendations for the Project.This 50%Report will be
accompanied by an engineer's opinion of total project construction cost for each alternative which is
so recommended for the Project with each component separately itemized,including the following,
which will be separately itemized:opinion of probable construction cost,allowances for contingencies,
andforthe estimated totalprojectcosts.
8.Furnish three (3)review copies of the 50%Report plus one (1)electronic copy to OWNER within
forty-five (45)calendar days of authorization to begin services and review the 50%report with
OWNER.
PageI of9 Pages
(EXHIBIT A-ScopeofWork)
9.Revise the Draft Report in response to OWNER'S and other parties'comments,as appropriate,and
furnish thee (3)final copies of the revised 50%Report to the OWNER within ten (10)calendar days
aftercompletion ofreviewing it with OWNER.
B.(Modified)ENGINEER'S services under the Preliminary Design Phase will be considered complete on the
date when the final copies of the revised 30%Report has been delivered to and accepted by OWNER.
A1.02 FinalDesignPhase
A.Upon written authorization from OWNER,ENGINEER shall:
1.(Modified)Prepare final Drawings indicating the scope,extent,and character of the Work to be
performed and furnished by Contractor.Specifications will be prepared,where appropriate,in
conformance with the 16-division format of the Construction Specifications Institute or other format
agreed toin writing by OWNER and ENGINEER.
2.Provide technical criteria,written descriptions,and design data for OWNER'S use in filing applications
for permits from or approvals of governmental authorities having jurisdiction to review or approve the
final design of the Project and assist OWNER in consultations with appropriate authorities.
3.Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to
Total Project Costsknownto ENGINEER.
4.(Modified)Attend meetings with,participate in conference calls with and prepare presentations for
OWNER and other applicable agencies,utility owners,pipelines,railroads,and other affected
stakeholders to review design details,to discuss and finalize design issues,and to coordinate the
Project.
5.Perfonn or provide the following additional final Design Phase tasks or deliverables:
a.Prepare design plans and technical specifications for the Project and obtain the approval of the
samefromtheTexasCommissionon Environmental Quality;
b.Prepare drawings and details for Storm Water Pollution Prevention Plan;
c.Prepare a general traffic control plan in accordance with the Texas Manual on Uniform Traffic
Control Devices;
d.Meet and coordinate with the OWNER,Texas Department of Transportation,and the Texas
Commission on Environmental Quality,as needed to facilitate coordination and approval of the
Construction Documents.
e.Prepare for and attend project status meetings with the OWNER.
6.Furnish three (3)review copies and one electronic copy in a format approved by the OWNER ofthe 90%
submittal,including Bidding Documents,along with a revised opinion of probable Construction Cost to
OWNER within sixty (60)calendar days ofauthorization to begin final design services and review itwith
OWNER.
7.Revise the 90%submittal in response to OWNER'S and other parties'comments,as appropriate,and
incorporate such revisions inthe 100%Bidding Documents.
8.Furnish three (3)review copies and one electronic copy in a format approved by the OWNER of the
100%Bidding Documents for review and approval by OWNER,its legal counsel,and other advisors,as
appropriate within ninety (90)calendar days of authorization to begin final design services and review it
Page 2 of 9Pages
(EXHIBIT A-Scope ofWork)
with OWNER,review it with OWNER,and assist OWNER in the preparation of other related
documents.
9.Revise the 100%Bidding Documents in response to OWNER'S and other parties'comments,as
appropriate,and submit 15 final sets of Bid Documents in pdf format on compact disks and an updated
opinion of probable Construction Cost to OWNER within one hundred (100)calendar days after
authorization to proceed withthis phase.
10.(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 submission of the final Bidding
Documents.
B.In the event that the Work designed or specified by ENGINEER isto be performed or furnished under more
than one prime contract,or if ENGINEER'S services are to bo separately sequenced with the work of one or more
prime Contractors (such as in the case of fast-tracking),OWNER and ENGINEER shall,prior to commencement of the
Final Design Phase,develop a schedule for performance ofENGINEER'S services during the Final Design,Bidding or
Negotiating,Constniction,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 ornot the work under such contracts isto 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 (I).
D.(Modified)CONSULTANT'S services under the Final Design Phase will be considered complete on the date
when the submittals required by paragraph A1.02.A.12 have been delivered to and accepted by OWNER and the
TDRAhas approved the same.
A1.03 Bidding or Negotiating Phase
A.After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the Final 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 ofthe Work as to which such acceptability is required
bytheBiddingDocuments.
4.(Modified)Conduct the Mandatory Pre-Bid Conference and prepare summary of pre-bid meeting minute
for the project and distribute to all prospective bidders.
5.(Modified)Attend the Bid opening,prepare Bid tabulation sheets,assemble contract documents,assist
OWNER in both evaluating Bids or proposals,recommend award to OWNER,as appropriate,and assist
in awarding contracts for theWork.
6.(Added)Assist in connection with Bid protests,rebidding,or re-negotiating contracts for construction,
materials,equipment,orservices.
B.(Modified)The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
Page3 of 9 Pages
(EXHIBIT A-Scope ofWork)
Al.03 Construction Phase
A.Upon successful completion of the Bidding and Negotiating Phase,and upon written authorization from
OWNER,ENGINEER shall:
1.General Administration of Construction Contract.Consult with OWNER and act as OWNER'S
representative as provided in the General Conditions.The extent and limitations of the duties,
responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be
modified,except as ENGINEER may otherwise agree in writing.All of OWNER'S instructions to
Contractor will be issued through ENGINEER,who shall have authority to act on behalf of OWNER
in dealings with Contractor to the extent provided in this Agreement and said General Conditions
except as otherwise provided in writing.
2.(Modified)Construction and Materials Testing.Provide construction material testing,including
concrete inspections,concrete test cylinders,reinforcing steel inspection and provide an engineering
and report review as necessary for the Project.ENGINEER shall provide two sets of blue prints
(civils and structurals)and one copy of the specification book to ENGINEER'S construction and
materialtesting subconsultant.
3.Pre-Construction Conference.Prepare a Pie-Construction Conference agenda and conduct a Pre-
Construction Conference prior to commencement of Work at the Site.Prepare and provide a
summary of the Pre-Construction Conference minutes for the project and distribute itto all parties
4.Baselines and Benchmarks.As appropriate,establish control and temporary benchmarks for locating
the Work which in ENGINEER'S judgment are necessary toenable Contractor to proceed.
5.Visits to Site and Observation ofConstruction.In connection with observations ofContractor's work
in progress whileitisin progress:
a.(Modified)Make visits to the Site at intervals appropriate to the various stages ofconstruction,
appropriate to verify Contractor's payment requests,and as ENGINEER and/or OWNER deems
necessary,in order to observe as an experienced and qualified design professional the progress
and quality of the Work.Such visits and observations by ENGINEER,and the Resident Project
Representative,if any,are not intended to be exhaustive or to extend to every aspect of
Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and
the Contract Documents,but rather are to be limited to spot checking,selective sampling,and
similar methods of general observation of the Work based on ENGINEER'S exercise of
professional judgment as assisted by the Resident Project Representative,if any.Based on
information obtained during such visits and such observations,ENGINEER will determine if
Contractor's work is proceeding in accordance with the Contract Documents,and ENGINEER
shall keep OWNER informed of the progress of the Work.i
b.(Modified)The purpose of ENGINEER'S visits to,and representation by the Resident Project
Representative,ifany,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 functioning whole as indicated in the Contract Documents has
been implemented and preserved by Contractor.ENGINEER shall not,during such visits or as
a result of such observations of Contractor's work in progress,supervise,direct,or have control
over Contractor's work,nor shall ENGINEER have authority over or responsibility for the
means,methods,techniques,sequences,or procedures of construction selected by Contractor,
for safety precautions and programs incident to Contractor's work,or for any failure of
Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and
Page4 of9 Pages
(EXHIBIT A-Scope of Work)
i
performing the Work.Accordingly,ENGINEER neither guarantees the performance of any
Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its
work in accordance with the Contract Documents.
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 tothe Contract Documents or
that it will prejudice the integrity of the design concept of the completed Project as a functioning
whole as indicated in the Contract Documents.
7.Clarifications and Interpretations;Field Orders.Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work.Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
the Contract Documents.ENGINEER may issue Field Orders authorizing minor variations from the
requirements oftheContract Documents.
8.Change Orders and Work Change Directives.Recommend Change Orders and Work Change
Directives to OWNER,as appropriate,and prepare Change Orders and Work Change Directives as
required.
9.Shop Drawings and Samples.Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit,but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents.Such reviews and approvals or other action will not extend to means,methods,
techniques,sequences or procedures ofconstruction or to safety precautions and programs incident
thereto.ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier
been acceptable to ENGINEER.
10.Substitutes and "or-equal."Evaluate and determine the acceptability of substitute or "or-equal"
materials and equipment proposed by Contractor,but subject to the provisions ofparagraph A2.01 of
this Exhibit A.
11.Inspections and Tests.Require such special inspections or tests of Contractor's work as deemed
reasonably necessary,and receive and review all certificates of inspections,tests,and approvals
required by Laws and Regulations or the Contract Documents.ENGINEER'S review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation thatthecontentor
procedures of such inspections,tests,or approvals comply with the requirements of the Contract
Documents.ENGINEER shallbe entitled to rely onthe results ofsuchtests.
12.Perform or provide the following additional Construction Phase tasks ordeliverables:
a.prepare progress meeting agendas and meeting minutes for progress meetings.
b.employ a subcontractor formaterial testing during construction.
c.employ a subcontractor to perform coating and welding inspections.
13.(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 toOWNERor Contractor.
14.Applications for Payment.Based on ENGINEER'S observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
Page5 of9 Pages
(EXHIBIT A-Scope of Work)
a.Determine the amounts that ENGINEER recommends Contractor be paid.Such
recommendations of payment will be in writing and will constitute ENGINEER'S representation
to OWNER,based on such observations and review,that,to the best of ENGINEER'S
knowledge,information and belief,Contractor's work has progressed to the point indicated,the
quality of such work is substantially in accordance with the Contract Documents (subject to an
evaluation of the Work as a functioning whole prior toor 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 inso far asitis ENGINEER'S
responsibility to observe Contractor's work.In the case of unit price work,ENGINEER'S
recommendations of payment will include final determinations of quantities and classifications
of Contractor's work (subject to any subsequent adjustments allowed by the Contract
Documents).The responsibilities of ENGINEER contained in paragraph A1.04.A.5.a are
expressly subject to the limitations set forth in paragraph A1.04A.5.b and other express or
general limitations in this Agreement and elsewhere.
b.By recommending any payment,ENGINEER shall not thereby be deemed to have represented
that observations made by ENGINEER to check the quality or quantity of Contractor's work as
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.
15.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 byContractor,and deliver three (3)copies of the same toOWNER.
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 A1.04.A.9,and the annotated record
documents which are tobe assembled by Contractor in accordance withthe Contract Documents to
obtain final payment.The extent of such ENGINEER'S review will be limited as provided in
paragraph A1.04.A.9.
c.ENGINEER shall transmit these documents toOWNER 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 and on mylar showing appropriate record information based on Project annotated
record documents received from Contractor.
16.(Modified;Final Notice ofAcceptability ofthe 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
Page6 of 9Pages
(EXHIBIT A-ScopeofWork)
provide a notice in the form attached hereto as Exhibit E (the "Notice ofAcceptability ofWork")that to
the best ofENGINEER'S knowledge,information and belief and upon the exercise ofENGINEER'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 AI.02.C,
Construction Phase services may be rendered atdifferent times in respect totheseparate contracts.
C.Limitation of Responsibilities.ENGINEER shall not be responsible for the acts or omissions of any
Contractor,or of any of its subcontractors,suppliers,or of any other individual or entity performing or
furnishing any ofthe Work.ENGINEER shall not be responsible for failure ofany Contractor to perform or
furnishthe Work in accordance withtheContract Documents.
PART 2 -ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER'S Authorization inAdvance
Not Included
A2.02 Required Additional Services
Not Included
Page7 of 9Pages
(EXHIBIT A-Scopeof Work)
OWNER'S Responsibilities
This isEXHIBITB,consisting of 2 pages,referred toin and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated .
Initial:
OWNER.
ENGINEER #^
Article 2ofthe Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities ofOWNER 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 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 be at the sole discretion ofthe OWNER.
C.(Modified)Following ENGINEER'S assessment of initially-available Project information and data and upon
ENGINEER'S written request,furnish or otherwise make available such additional available Project related information
and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services.
1.(Deleted).
2.(Deleted).
3.(Deleted).
4.(Deleted).
5.(Deleted).
6.(Deleted).
D.(Deleted).
E.(Modified)Authorize ENGINEER to provide Additional Services as set forth in Part 2of Exhibit Aof the
Agreement astheOWNER 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
G.Examine all alternate solutions,studies,reports,sketches,Drawings,Specifications,proposals,and other
documents presented by ENGINEER (including obtaining advice of an attorney,insurance counselor,and other
advisors or consultants as OWNER deems appropriate with respect to such examination)and render in writing timely
decisions pertaining thereto.
Page1 of2 Pages
(ExhibitB-OWNER'S Responsibilities)
H.(Deleted).
I.(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 construclabiiity review.
K.Deleted
L.Deleted
M.Deleted
N.Deleted
Page 2 of2 Pages
(ExhibitB-OWNER'S Responsibilities)
ThisisEXHIBITC,consisting of 2 pages,referred toinand
part of the Agreement between OWNERand ENGINEER
for Professional Services dated •
Initial:
OWNER
ENGINEER
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 ForBasicServices Having A Determined
Scope-Costnotto Exceed Method of Payment
A.OWNERshallpayENGINEER
Services set forthin Exhibit Aas follows:
for Basic
inthecostnotto exceed toaccountforlabor,
overhead,andprofit.
4.Deleted.
5.The portion of the amount billed for
ENGINEER'Sservices will bebasedupontotal
services actually completed during the billing
period,which shall bea calendar month.Invoices
shallbetenderednomore often thanoncea month
for all of theservices performed duringthe
applicable month.
1.(Modified)Acostnottoexceed
amount of $172.460.00.basedupontherate
schedule,whichis attached asAppendix1 of C4.02
ExhibitCand incorporated hereinforall intents and
purposes.This amount docs not include those
ENGINEER'S Consultant's charges as provided
belowinthisArticle 4,Subparagraph C4.05,and
willbe distributed atthe completion of each of the
phase inthe following amount:
a.Preliminary Design Phase $33,800
b.Design Phase $81,560
c.Bid Phase SI 1,700
d.Construction Phase 345,400
For Basic Services Having An Undetermined
Scope -Direct Labor Costs Times a Factor
MethodofPayment
2.(Modified)ENGINEERmaywiththe
consent of OWNER alterthe distribution of
compensation between individual phases noted
hereintobeconsistentwithservices actually
rendered,butshallnotexceedthetotalcostnotto
exceedamountunless approved inwritingbythe
OWNER.
3.The cost notto exceed includes
compensation for ENGINEER'S services and
services of ENGINEER'S Consultants (withthe
exception of those outlined in paragraph C4.05),if
any.Appropriate amountshavebeen incorporated
A.(NotUsed).
C4.03 For Additional Services
A.OWNER shall pay ENGINEER for Additional
Services as follows:
1.General.For services of ENGINEER'S
employees engaged directly onthe Project pursuant
to paragraph A2.01 or A2.02 of Exhibit Aof the
Agreement,except for services asa consultant or
witnessunder paragraph A2.01.A.13,anamount
based upon the actual hours worked and the rate
schedule,whichis attached asAppendix1 of
Exhibit C and incorporated herein for all intents and
purposes plus Reimbursable Expenses.Additional
Services shall not be performed withoutthe prior
written consent of the OWNER.
C4.04 ForReimbursableExpenses
A.(Modified)When not included in compensation
forBasicServicesunder paragraph C4.0I,OWNER
shall pay ENGINEER for Reimbursable Expenses asthe
rate set fortli inAppendix2 of thisExhibitC.Beforethe
OWNERshallbeliableforany reimbursable expenses,
Page1 of 2 Pages
(Exhibit C-Basic Services With Determined Scope -Cost notto exceed Method)
the ENGINEER must obtain prior written approval of C4.06 Direct Labor Costs
theOWNERofany expense that exceeds $1,000 for
which the ENGINEER seeks reimbursement.
Reimbursable Expenses shall not exceed $5,500.
B.(Modified)Reimbursable Expenses include the
following categories:mileage,parking tolls,long
distance,reproduction of Drawings,Specifications,
Bidding Documents,and similar Project-related items in
addition tothose required underExhibitA,and,if
authorizedinadvanceby OWNER.
C.The amounts payable to ENGINEER for
Reimbursable Expenses willbethe Project-related
internal expenses actually incurred or allocated by
ENGINEER,plus all invoiced external Reimbursable
Expenses allocable tothe Project,the latter multiplied by
a Factor of fl.lOVTravel,meals,mileage,rental cars,
andlike expenses arenotsubjecttothe1.10 Factor.
A.DirectLaborCostsmeanssalariesandwages
paid to ENGINEER'S employees but does not include
payroll related costsor benefits.
B.(Deleted).
4.07 Factors
(Deleted)
C4.08 OtherProvisions Concerning Payment
A.Progress Payments.The portion of the
amountsbilledfor ENGINEER'S serviceswhichare
identified in paragraphs C4.01 and C4.03,willbe
basedontheDirectLaborCostsforthecumulative
hours charged tothe Project during the billing
period by all of ENGINEER'S employees,plus
Reimbursable Expenses and ENGINEER'S
Consultant's charges,if any.
D.Deleted.
E.(Added)TheOWNERmust approve all travel
expenses before the same are incurred.If such approval
isnot obtained,theOWNER shall notbe liable for such
travelexpenses.
C4.05 For ENGINEER'S Consultant'sCharges
A.(Modified)Whenever compensation to
ENGINEER hereinis stated toincludecharges of
ENGINEER'S Consultants,thosechargesshallbethe
amounts billedbyENGINEER'S Consultants to
ENGINEER timesaFactor of (1.10).Theconsultant
charges shall not exceed the following amounts specified
for each of the following services,unless approved in
writing bythe OWNER.The charges include the factor,
andshallnotexceedthefollowingwithoutpriorwritten
consent of the OWNER.
Preliminary DesignPhase
Geotechnical Investigations $10,529
Topographic Survey $7,633
Environmental $1,980
FinalDesignPhase
Storm Water Prevention Plan $1,500
TrafficControl-TxDOT approval....$2,500
Construction Phase
Material Testing $31,539
Coating &Welding Inspection $18,700
Page2 of2 Pages
(ExhibitC-All Other Services/Charges -Cost not to Exceed Method of Payment)
APPENDIX I OF EXHIBIT C-HOURLY RATES
HourlyRatesfor Consultant Staff:
All services are tobebilled on an hourly basis based on time and materials and based upon the following rates:
POSITION
HOURLY
UAir,
Principal $250.00
Project Manager $220.00
Civil Engineer $110.00
Electrical Engineer $200.00
CADD Operator $85.00
Construction Manager (P.E.)$150.00
Administrative Support $70.00
Page 1 of I Pages
(Appendix1ofExhibitC-Hourly Rates)
APPENDIX 2 OF EXHIBIT C-REIMBURSEMENT OF COSTS
External Reproduction and Deliveries:Cost plus 10%
Internalexpenses:Cost
Mileage:IRSRate
Travel:Cost
Page1 of 1 Pages
(Appendix 2of Exhibit C-Reimbursement ofCosts)
ThisisEXHIBITE,consisting of 2 pages,referred toinand
part ofthe Agreement between OWNERand ENGINEER
for Professional Services dated •
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER'S Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To:OWNER
Initial:
OWNER
ENGINEER 0-
And To:CONTRACTOR
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:
Page1 of 2Pages
(ExhibitE-Notice of Acceptability of Work)
(Reverseside of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY 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 atthesame time andinthesamelocality.
2.Said Notice reflects and is an expression ofthe professional judgment of ENGINEER.
3.Said Notice is given as to the best ofENGINEER'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.
5.(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 withthe Contract Documents.
Page2 of 2Pages
(ExhibitE-Notice of Acceptability ofWork)
Insurance
ThisisEXHIBITG,consisting of 2 pages,referred toinand
part of the Agreement between OWNERandENGINEER
forProfessional Services dated
Initial:
OWNER
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the term of this Agreement,die ENGINEER at its own expense shall purchase,maintain and keep in
force and effect insurance against claims for injuries toordeath of persons or damages to property which may arise
out ofor 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
(hemmaybeliable.
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 ofthe ENGINEER'S insurance and shall notcontribute 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
ofthe requirements stated herein.
The following isa list of standard insurance policies along with their respective minimum coverage amounts
required inthiscontract:
Commercial General Liability (CGL)
General Aggregate:$2,000,000
Products &Completed Operations:$1,000,000
Personal &Advertising Injury:$1,000,000
Per Occurrence:$1,000,000
a.Coverage shall beat least as broad asISOCG00 01 04 13
b.No coverage shall be excluded from standard policy without notification of individual exclusions being
attachedfor review andacceptance.
Business Automobile Policy (BAP)
CombinedSingleLimits:$1,000,000
a.Coveragefor "Any Auto."
Workers'CompensationInsurance
StatutoryLimits
Employer'sLiability$500,000
Waiver of Subrogationrequired
Errors &Omissions (E&O)
Limit:$1,000,000
a.Forall engineers,and/ordesign companies.
b.Claims-madeformisacceptable.
c.Coverage will bein force for three (3)years after project is completed.
Page 1 of2 Pages
(Exhibit G-Insurance)
Upon execution of this contract,ENGINEER shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER.Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled,suspended,voided,or reduced until at least thirty (30)days'prior written notice
has been given to the OWNER via certified mail,return receipt requested.
The ENGINEER shall also file withtheOWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a.AMBestRating of B+:VII or better.
b.Insurance carriers licensed and admitted to do business in State of Texas willbe 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
shallbefurnishedto OWNER'S representative.
Page2 of2Pages
(Exhibit G•Insurance)
Indemnification
This isEXHIBITK,consisting of 2 pages,referred toin and part of
the Agreement between OWNERand 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 (HEREAFTERREFERREDTOAS "OWNER")
FROM AND AGAINST ANY AND ALL CLAIMS,LOSSES,
DAMAGES,CAUSESOF ACTION,SUITSAND 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,ENGINEER UNDER
CONTRACT,OR ANOTHER ENTITY OVER WHICH THE
ENGINEER EXERCISES CONTROL (COLLECTIVELY
ENGINEER'S PARTIES).ITISTHEEXPRESSED 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 ISINDEMNIFIED,ENGINEER 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 bythe 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 toor death of any person and/or any loss ofor damage to any property
that is caused byor alleged to be caused by,arising outof,orin connection with
ENGINEER'S worktobe performed hereunder.This release shall applywith respect to
ENGINEER'S work regardless of whether said claims,demands,and causes of action
are covered in whole orin 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 inthisExhibit MK"
shall survive the termination and/or expiration of this Agreement.