HomeMy WebLinkAboutResolution - 2005-R0500 - Contract-HDR Engineering Inc-Engineernig Services, Water Line Replacement, Etc. - 10_27_2005Resolution No. 2005-RO500
October 27, 2005
Item 5.10
RESOLUTION
'BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Contract for engineering
services for water line replacement and water distribution system improvements, by and
between the City of Lubbock and HDR Engineering, Inc., of Austin, Texas, and related
documents. Said Contract is attached hereto and incorporated in this resolution as if fully
set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council this 27th day of October, 2005.
OUGAL, MAYOR
ATTEST:
Rebecca Garza, City Sccretary
APPROVED AS TO CONTENT:
Sherry Stephens, m Director of Water Utilties
APPROVED AS TO FORM:
M. Knight, As515 t City kriorney
"low
gs/ccdocs/Res-Contract-HDR Engineering Inc
October 14, 2005
r,OKI TACT NO.
6067
AGREEMENT
BETWEEN THE CITY OF LUBBOCK, TEXAS
AND HDR ENGINEERING, INC.
FOR
PROFESSIONAL ENGINEERING SERVICES
Based on the
Standard Form of Agreement
Between Owner And Engineer
for
Professional Services
(EJCDC No. 1910-1, 1996 Edition)
Prepared by
ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE
and
Issued and Published Jointly By
[PEPP LOGO] [ACEC LOGO] [ASCE LOGO]
PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE
a practice division of the
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS
AMERICAN CONSULTING ENGINEERS COUNCIL
AMERICAN SOCIETY OF CIVIL ENGINEERS
And
As Modified by the Parties Hereto
This Agreement has been prepared for use with the Standard General Conditions of the Construction Contract
(No. 1910-8, 1996 Edition) of the Engineers Joint Contract Documents Committee. Their provisions are
interrelated, and a change in one may necessitate a change in the other. For guidance in the preparation of
Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. 1910-17) (1996
Edition). For guidance on the completion and use of this Agreement, see EJCDC Users Guide, No. 1910-50.
Copyright Co31996 National Society of Professional Engineers
1420 King Street, Alexandria, VA 22314
American Consulting Engineers Council
1015 15th Street N.W., Washington, DC 20005
American Society of Civil Engineers
345 East 47th Street, New York, NY 10017
TABLE OF CONTENTS Pate
ARTICLE 1 - SERVICES OF ENGINEER.........................................................................................................................2
1.01 Scope............................................................................................................................................................. 2
ARTICLE 2 - OWNER'S RESPONSIBILITIES................................................................................................................. 2
2.01 General...........................................................................................................................................................2
ARTICLE 3
- TIMES FOR RENDERING SERVICES...................................................................................................... 2
3.01
General...........................................................................................................................................................2
3.02
Suspension.....................................................................................................................................................2
ARTICLE 4 - PAYMENTS TO ENGINEER...................................................................................................................... 2
4.01
Methods of Payment for Services and Reimbursable Expenses of ENGINEER ......................................... 2
4.02
Other Provisions Concerning Payments........................................................................................................ 3
ARTICLE 5 - OPINIONS OF COST................................................................................................................................... 3
5.01
Opinions of Probable Construction Cost...................................................................................................... 3
5.03
Opinions of Total Project Costs................................................................................................................... 3
ARTICLE 6
- GENERAL CONSIDERATIONS................................................................................................................. 4
6.01
Standards of Performance........................................................................................................ 4
6.02
Authorized Project Representatives ................ .............................................................................................. 5
6.03
Design without Construction Phase Services................................................................................................ 5
6.04
Use of Documents................................................................................................. 5
6.05
Insurance........................................................................................................................................................ 6
6.06
Termination ............... ....................................................................................................................................6
6.07
Controlling Law............................................................................................................................................. 6
6.08
Successors, Assigns, and Beneficiaries......................................................................................................... 7
6.09
Dispute ResoIution................................................................................................................. 7
6.10
Hazardous Environmental Condition............................................................................................................ 7
6.11
Allocation of Risks........................................................................................................................................ 7
6.12
Notices ...............................................................................................................8
6.13
Survival..........................................................................................................................................................8
6.14
Severability............................................. ........................................,..............................................................8
6.15
Waiver......................................................... .... 8
6.16
Headings ..................................... ...................................................................................................................8
ARTICLE7
- DEFINITIONS.............................................................................................................................................. 9
7.01
Defined Terms.............................................................................................................................................. 9
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................. ......................................... I ......... .......... 11
8.01 Exhibits Included. ........................................................................................................................................ 11
8.02 Total Agreement--..................................................................................................................................... 12
AGREEMENT
BETWEEN THE CITY OF LUBBOCK, TEXAS
AND HDR ENGINEERING, INC.
FOR
PROFESSIONAL ENGINEERING SERVICES
THIS IS AN AGREEMENT effective as of October 27 , 2005 ("Effective Date") between
The City of Lubbock Texas ("OWNER") and HDR Engineering, Inc. ("ENGINEER").
OWNER intends to improve its�otable water distribution system as follows (all improvements described below are
collectively referred to herein as the "Project):
engLnM-H19 Shia). AM aiLeMdW MULe 1011OW5 .3.3 3LreCl IryIII SZUaKCF iWCnue W HVCRUC V, Dul 11 US 0L1erW15C Me
same as described previously;
Downtown Water Distribution Improvements: This improvement will replace existing pipelines located in street rights -
of -way (alleys are excluded) to improve fire flow and domestic supply within the improvement area. City standards call
for a 3,500 GPM fire flow within industrial and commercial areas, and the project_ will attempt to satisfy this flow
requirement to the extent reasonably feasible without pumyina or storage improvements, or any other improvements
beyond the limits of the improvement, This improvement lies within the area bounded by Avenue O. Mac Davis Lane.
the BNSF Railroad. IH-27, and 160` Street
OWNER and ENGINEER 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 13
ARTICLE 1 - SERVICES OF ENGINEER
1.01 Scope
A. ENGINEER shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. Upon this Agreement becoming effective,
ENGINEER is authorized to begin Basic Services as set
forth in Exhibit A.
C. If authorized by OWNER, ENGINEER shall
furnish Resident Project Representative(s) with duties,
responsibilities and limitations of authority as set forth in
Exhibit D.
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. ENGINEER's services and compensation under
this Agreement have been agreed to in anticipation of the
orderly and continuous progress of the Project through
completion. Unless specific periods of time or specific
dates for providing services are specified in this Agreement,
ENGINEER's obligation to render services hereunder will
be for a period which may reasonably be required for the
completion of said services.
B. If in this Agreement specific periods of time for
rendering services are set forth or specific dates by which
services are to be completed are provided, and if such
periods of time or dates are changed through no fault of
ENGINEER, the rates and amounts of compensation
provided for herein shall be subject to equitable adjustment.
If OWNER has requested changes in the scope, extent, or
character of the Project, the time of performance of
ENGINEER's services shall be adjusted equitably.
C. For purposes of this Agreement the term "day"
means a calendar day of 24 hours.
3.02 Suspension
A. If OWNER fails to give prompt written
authorization to proceed with any phase of services after
completion of the immediately preceding phase, or if
ENGINEER's services are delayed through no fault of
ENGINEER, ENGINEER may, after giving seven days
written notice to OWNER, suspend services under this
Agreement.
B. If ENGINEER's services are delayed or
suspended in whole or in part by OWNER, or if
ENGINEER's services are extended by Contractor's actions
or inactions for more than 90 days through no fault of
ENGINEER, ENGINEER shall 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.
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. For Reimbursable Expenses. In addition to
payments provided for in paragraphs 4.01.A and 4.01.13,
OWNER shall pay ENGINEER for Reimbursable Expenses
incurred by ENGINEER and ENGINEER's Consultants as
set forth in Exhibit C. Reimbursable Expenses include the
following categories: transportation and subsistence
incidental thereto; obtaining bids or proposals from
Contractor(s); providing and maintaining field office
facilities including furnishings and utilities; subsistence
and transportation of Resident Project Representative and
their assistants; toll telephone calls and telegrams;
reproduction of reports, Drawings, Specifications,
Bidding Documents, and similar Project -related items in
addition to those required under Exhibit A, and, if
authorized in advance by OWNER, overtime work
requiring higher than regular rates. In addition, if
authorized in advance by OWNER, Reimbursable
Expenses will also include expenses incurred for
computer time and the use of other highly specialized
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 2 of 13
equipment. Reimbursable Expenses will also include the
amount of any sales tax, excise tax, value added tax, or
gross receipts tax or similar tax that may be imposed on
this agreement.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with ENGINEER's standard invoicing
practices and will be submitted to OWNER by
ENGINEER, unless otherwise agreed. The amount billed in
each invoice will be calculated as set forth in Exhibit C.
B. Payment of Invoices. Invoices are due and
payable within 30 days of receipt. If OWNER fails to make
any payment due ENGINEER for services and expenses
within 30 days after receipt of ENGINEER's invoice
therefor, the amounts due ENGINEER will be increased at
the rate of 1.0% per month (or the maximum rate of interest
permitted by law, if less) from said thirtieth day. In
addition, ENGINEER may, after giving seven days written
notice to OWNER, suspend services under this Agreement
until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. Payments
will be credited first to interest and then to principal.
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. Disputed Items. OWNER may temporarily
delete any disputed items contained in ENGINEER's
invoice, including items disputed due to lack of
supporting documentation, and pay the remaining amount
of the invoice. OWNER shall promptly notify
ENGINEER of the dispute and request clarification and/or
remedial action. After any dispute has been settled and it
is agreed by both parties the item is payable, ENGINEER
shall include the disputed item on a subsequent regularly
scheduled invoice or on a special invoice for the disputed
item only.
E. Payments Upon Termination.
1. In the event of any termination under
paragraph 6.06, ENGINEER will be entitled to
invoice OWNER and will be paid in accordance with
Exhibit C for all services performed or furnished and
all Reimbursable Expenses incurred through the
effective date of termination.
2. In the event of termination by OWNER for
convenience or by ENGINEER for cause, ENGINEER,
in addition to invoicing for those items identified in
subparagraph 4.02.D.1, shall be entitled to invoice
OWNER and shall be paid the actual incurred amount
for services and expenses directly attributable to
termination, both before and after the effective date of
termination, such as reassignment of personnel, costs of
terminating contracts with ENGINEER's Consultants,
and other related close -,out costs, using methods and
rates for Additional Services as set forth in Exhibit C.
F.. Records of ENGINEER's Costs. Records of
ENGINEER's costs pertinent to ENGINEER's
compensation under this Agreement shall be kept in
accordance with generally accepted accounting practices.
To the extent necessary to verify ENGINEER's charges and
upon OWNER's timely request, copies of such records will
be made available to OWNER at cost.
G.. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any
level of government that impose taxes, fees, or costs on
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.
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 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, since ENGINEER has no control over the cost of
labor, materials, equipment, or services furnished by others,
or over the Contractor's methods of determining prices, or
over competitive bidding or market conditions, 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 Reserved
5.03 Opinions of Total Project Costs
A. ENGINEER assumes no responsibility for the
accuracy of opinions of Total Project Costs.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 3 of 13
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. The standard of care for all professional
engineering and related services performed or furnished 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 same locality. ENGINEER makes no warranties,
express or implied, under this Agreement or otherwise, in
connection with ENGINEER's services.
B. 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 -furnished information.
C. ENGINEER shalt perform or furnish professional
engineering and related services in all phases of the 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 in the
performance or furnishing 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 after
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. OWNER shall be responsible for, and
ENGINEER may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data,
and other information furnished by OWNER to
ENGINEER pursuant to this Agreement. ENGINEER may
use such requirements, reports, data, and information in
performing or furnishing services under this Agreement.
F. OWNER shall make decisions and carry out its
other responsibilities in a timely manner and shall bear all
costs incident thereto so as not to delay the services of
ENGINEER.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify ENGINEER of any variations
from the language indicated in Exhibit E, "Notice of
Acceptability of Work," or of any other notice or
certification that ENGINEER will be requested to provide
to OWNER or third parties in connection with the Project.
OWNER and ENGINEER shall reach agreement on the
terms of any such requested notice or certification, and
OWNER shall authorize such Additional Services as are
necessary to enable ENGINEER to provide the notices or
certifications requested.
H. ENGINEER shall not be required to sign any
documents, no matter by whom requested, that would result
in the ENGINEER's having to certify, guarantee or warrant
the existence of conditions whose existence the ENGINEER
cannot ascertain. OWNER agrees not to make resolution of
any dispute with the ENGINEER or payment of any amount
due to the ENGINEER in any way contingent upon the
ENGINEER's signing any such certification.
I. During the Construction Phase, ENGINEER shall
not 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
the Contractor's work in progress, nor for any failure of
Contractor to comply with Laws and Regulations applicable
to Contractor's furnishing and performing the Work.
J. ENGINEER neither guarantees the performance of
any Contractor nor assumes responsibility for any
Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents.
K. ENGINEER shall not be responsible for the acts or
omissions of any Contractor(s), subcontractor or supplier, or
of any of the Contractor's agents or employees or any other
persons (except ENGINEER's own employees) at the Site
or otherwise furnishing or performing any of the
Contractor's work; or for any decision made on
interpretations or clarifications of the Contract Documents
given by OWNER without consultation and advice of
ENGINEER.
L. The General Conditions for any construction
contract documents prepared hereunder are to be the
"Standard General Conditions of the Construction Contract"
as prepared by the Engineers Joint Contract Documents
Committee (Document No. 1910-8, 1996 Edition) unless
both parties mutually agree to use other General Conditions
as specifically referenced in Exhibit J.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 4 of 13
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 party except as required or prohibited by
law.
6.03 Design without Construction Phase Services
A. Should OWNER provide Construction Phase
services with either OWNER's representatives or a third
party, ENGINEER's Basic Services under this Agreement
will be considered to be completed upon completion of the
Final Design Phase or Bidding or Negotiating Phase as
outlined in Exhibit A.
B. It is understood and agreed that if ENGINEER's
Basic Services under this Agreement do not include Project
observation, or review of the Contractor's performance, or
any other Construction Phase services, and that such
services will be provided by OWNER, then OWNER
assumes all responsibility for interpretation of the Contract
Documents and for construction observation or review and
waives any claims against the ENGINEER that may be in
any way connected thereto.
6.04 Use of Documents
A. All Documents are instruments of service in respect
to this Project, and ENGINEER shall retain an ownership
and property interest therein (including the right of reuse at
the discretion of the ENGINEER) whether or not the
Project is completed.
B. Copies of OWNER -furnished data that may be
relied upon by ENGINEER are limited to the printed copies
(also known as hard copies) that are delivered to the
ENGINEER pursuant to Exhibit A. 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 that may be relied upon by
OWNER are limited to the printed copies (also known as
hard copies) that are signed or sealed by the ENGINEER,
Files in electronic media format of text, data, graphics, or of
other types that are furnished by ENGINEER to OWNER
are only for convenience of OWNER. Any conclusion or
information obtained or derived from such electronic files
will be at the user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise
without authorization of the data's creator, the party
receiving electronic files agrees that it will perform
acceptance tests or procedures within 60 days, after which
the receiving party shall be deemed to have accepted the
data thus transferred. Any errors detected within the 60-day
acceptance period will be corrected by the party delivering
the electronic files. 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
term compatibility, usability, or readability of documents
resulting from the use of software application packages,
operating systems, or computer hardware differing from
those used by ENGINEER at the beginning of this Project.
F. OWNER may make and retain copies of Documents
for information and reference in connection with use on the
Project by OWNER. Such Documents are not intended or
represented to be suitable for reuse by OWNER or others
on extensions of the Project or on any other project. Any
such reuse or modification without written verification or
adaptation by ENGINEER, as appropriate for the specific
purpose intended, will be at OWNER's sole risk and
without liability or legal exposure to ENGINEER or to
ENGINEER's Consultants. OWNER shall indemnify and
hold harmless ENGINEER and ENGINEER's Consultants
from all claims, damages, losses, and expenses, including
attorneys' fees arising out of or resulting therefrom to the
extent permissible by law.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents
for extensions of the Project or for any other project will
entitle ENGINEER to further compensation at rates to be
agreed upon by OWNER and ENGINEER.
I. After termination. Upon termination,
ENGINEER shall: (1) promptly discontinue all Services
affected (unless a termination notice from OWNER
directs otherwise); and (2) upon full payment for services,
deliver or otherwise make available to OWNER all
documents, data, drawings, specifications, reports,
estimates, surmnaries, and such other information and
materials as may have been accumulated by ENGINEER
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 5 of 13
in performing this Agreement, whether completed or in
process.
6.05 Insurance
A. ENGINEER shall procure and maintain insurance
as set forth in Exhibit G, "Insurance."
B. (Not Used)
C. OWNER shall require Contractor to purchase and
maintain general liability, builder's risk, and other insurance
as specified in the Contract Documents and to cause
ENGINEER and ENGINEER's Consultants to be listed as
additional insureds with respect to such liability and other
insurance purchased and maintained by Contractor for the
Project. Builder's risk policy shall include a waiver of
subrogation against OWNER and ENGINEER.
D. ENGINEER shall deliver certificates of insurance
evidencing the coverages indicated in Exhibit • G. Such
certificates shall be furnished prior to commencement of
ENGINEER's services and at renewals thereafter during the
life of the Agreement. Certificates of insurance shall name
OWNER as additional insured on the General Liability
policy. ENGINEER's policy shall be primary and non-
contributory and shall be so noted on the certificate of
insurance. All such policies shall contain a waiver of
subrogation in favor of the Owner.
E. (Not Used)
F. At any time, OWNER may request that
ENGINEER, at OWNER's sole expense if an additional
cost or premium is required, 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. The obligation to provide further services under
this Agreement may be terminated:
1. For cause,
a. By either party upon 30 days written
notice in the event of substantial failure by the
other party to perform in accordance with the
terms hereof through no fault of the tenninating
party.
b. By ENGINEER:
1) upon seven days written notice if
ENGINEER believes that ENGINEER is
being requested by OWNER to furnish or
perform services contrary to ENGINEER's
responsibilities as a licensed professional; or
2) upon seven days written notice if the
ENGINEER's services for the Project are
delayed or suspended for more than 90 days
for reasons beyond ENGINEER's control.
3) ENGINEER shall have no liability
to OWNER on account of such termination.
c. Notwithstanding the foregoing, this
Agreement will not terminate as a result of such
substantial failure if the party receiving such notice
begins, within seven days of receipt of such notice,
to correct its failure to perform and proceeds
diligently to cure such failure within no more than
30 days of receipt thereof, provided, however, that
if and to the extent such substantial failure cannot
be reasonably cured within such 30 day period,
and if such party has diligently attempted to cure
the same and thereafter continues diligently to cure
the same, then the cure period provided for herein
shall extend up to, but in no case more than, 60
days after the date of receipt of the notice.
2. For convenience,
a. By OWNER effective upon the receipt of
notice by ENGINEER.
B. The terminating party under paragraphs 6.06.A.1
or 6.06.A.2 may set the effective date of termination at a
time up to 30 days later than otherwise provided to allow
ENGINEER to demobilize personnel and equipment from
the Site, to complete tasks whose value would otherwise be
lost, to prepare notes as to the status of completed and
uncompleted tasks, and to assemble Project materials in
orderly files..
6.07 Controlling Law
A. This Agreement is to be governed by the law of
the state in which the Project is located.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 6 of 13
6.08 Successors, Assigns, and Beneficiaries
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 transfer any rights under or interest (including, but
without limitation, moneys that are due or may become due)
in this Agreement without the written consent of the other,
except to the extent that any assignment, subletting, or
transfer is mandated or restricted by law. Unless
specifically stated to the contrary in any written consent to
an assignment, no assignment will release or discharge the
assignor from any duty or responsibility under this
Agreement.
C. Unless expressly provided otherwise in this
Agreement:
1. Nothing in this Agreement shall be construed
to create, impose, or give rise to any duty owed by
OWNER or 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 duties 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 party. The OWNER agrees
that the substance of the provisions of this paragraph
6.08.0 shall appear in the Contract Documents.
6.09 Dispute Resolution
A. OWNER and ENGINEER agree to negotiate all
disputes between them in good faith prior to exercising their
rights under law.
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. OWNER has disclosed to the best of its
knowledge to ENGINEER the existence of all Asbestos,
PCB's, Petroleum, Hazardous Waste, or Radioactive
Material related to the existing water lines.
C. if a Hazardous Environmental Condition is
encountered or alleged, ENGINEER shall have the
obligation to notify OWNER and, to the extent of
applicable Laws and Regulations, appropriate governmental
officials.
D. It is acknowledged by both parties that
ENGINEER's scope of services does not include any
services related to a Hazardous Environmental Condition.
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: (i)
retains appropriate specialist consultant(s) or contractor(s)
to identify and, as appropriate, abate, remediate, or remove
the Hazardous Environmental Condition; and (ii) warrants
that the Site is in full compliance with applicable Laws and
Regulations.
E. OWNER acknowledges that ENGINEER is
performing professional services for OWNER and that
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, Compensation, and Liability Act
of 1990 (CERCLA), which are or may be encountered 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. Indemnification
1. To the fullest extent permitted by law,
ENGINEER shall indemnify and hold harmless
OWNER, OWNER's elected officials, officers,
directors, partners, and employees from and against any
and all costs, losses, and damages (including but not
limited to all fees and charges of engineers, architects,
attorneys, and other professionals, and all court or
arbitration or other dispute resolution costs) caused
solely by the negligent acts or omissions of
ENGINEER or ENGINEER's officers, directors,
partners, employees, and ENGINEER's Consultants in
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 7 of 13
the performance and furnishing of ENGINEER's
services under this Agreement.
2. To the fullest extent permitted by law,
OWNER shall indemnify and hold harmless
ENGINEER, ENGINEER's officers, directors,
partners, employees, and ENGINEER's Consultants
from and against any and all costs, losses, and damages
(including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals,
and all court or arbitration or other dispute resolution
costs) caused solely by the negligent acts or omissions
of OWNER or OWNER's officers, directors, partners,
employees, and OWNER's consultants with respect to
this Agreement or the Project.
3. To the fullest extent permitted by law,
ENGINEER's total liability to OWNER and anyone
claiming by, through, or under OWNER for any cost,
loss, or damages caused in part by the negligence of
ENGINEER and in part by the negligence of OWNER
or any other negligent entity or individual, shall not
exceed the percentage share that ENGINEER's
negligence bears to the total negligence of OWNER,
ENGINEER, and all other negligent entities and
individuals.
4. (Not Used)5. The indemnification provision
of paragraph 6.1I.A.I is subject to and limited by the
provisions agreed to by OWNER and ENGINEER in
Exhibit H, "Allocation of Risks," if any.
6.12 Notices
A. Any notice required under this Agreement will be
in writing, addressed to the appropriate party at its address
on the signature page and given personally, or by registered
or certified mail postage prepaid, or by a commercial
courier service. All notices shall be effective upon the date
of receipt.
6.13 Survival
A. All express representations, indemnifications, or
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 the stricken
provision.
6.15 Waiver
A. Non -enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the
remainder of this Agreement. One or more waivers by
either party of any provision, term, condition or covenant
shall not be constructed as a waiver of a subsequent
breach of the same by the other party.
6.16 Headings
A. The headings used in this Agreement are for
general reference only and do not have special significance.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 8 of 13
ARTICLE 7 - DEFINITIONS the Contract Times, issued on or after the Effective
Date of the Construction Agreement.
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital
letters, the terms listed below have the meanings
indicated, which are applicable to both the singular and
plural thereof:
1. Addenda --Written or graphic instruments
issued prior to the opening of Bids which clarify,
correct, or change the Bidding Documents.
2. Additional Services --The services to be
performed for or furnished to OWNER by 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. Application 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.
5. Asbestos —Any material that contains more
than one percent asbestos and is friable or is releasing
asbestos fibers into the air above current action levels
established by the United States Occupational Safety
and Health Administration.
G. Basic Services --The services to be performed
for or furnished to OWNER by ENGINEER in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid --The offer or proposal of the bidder
submitted on the prescribed form setting forth the
prices for the Work to be performed.
8. Bidding Documents --The advertisement or
invitation to Bid, instructions to bidders, the Bid form
and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
9. Change Order --A document recommended by
ENGINEER, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision
in the Work, or an adjustment in the Contract Price or
10. Construction Agreement --The written
instrument which is evidence of the agreement,
contained in the Contract Documents, between
OWNER and Contractor covering the Work.
11. Construction Contract --The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. Construction Cost --The cost to OWNER of
those portions of the entire Project designed or
specified by ENGINEER. Construction Cost does not
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 B of this
Agreement. Construction Cost is one of the items
comprising Total Project Costs.
13. Contract Documents --Documents that
establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor,
Addenda (which pertain to the Contract Documents),
Contractor's Bid (including documentation
accompanying the Bid and any post -Bid documentation
submitted prior to the notice of award) when attached
as an exhibit to the Construction Agreement, the notice
to proceed, the bonds, appropriate certifications, the
General Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders,
Work Change Directives, Field Orders, and
ENGINEER's written interpretations and clarifications
issued on or after the Effective Date of the
Construction Agreement. Approved Shop Drawings
and the reports and drawings of subsurface and
physical conditions are not Contract Documents.
14. Contract Price --The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated
in the Construction Agreement.
15. Contract Times --The numbers of days or the
dates stated in the Construction Agreement to.
(i) achieve Substantial Completion, and (ii) complete
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 9 of 13
the Work so that it is ready for final payment as
evidenced by ENGINEER's written recommendation
of final payment.
16. Contractor --An individual or entity with
whom OWNER enters into a Construction Agreement.
17. Correction Period --The time after Substantial
Completion during which Contractor must correct, at
no cost to OWNER, any Defective Work, normally one
year after the date of Substantial Completion or such
longer period of time as may be prescribed by Laws or
Regulations or by the terms of any applicable special
guarantee or specific provision of the Contract
Documents.
18. Defective --An adjective which, when
modifying the word Work, refers to Work that is
unsatisfactory, faulty, or deficient, in that it does not
conform to the Contract Documents, or does not meet
the requirements of any inspection, reference standard,
test, or approval referred to in the Contract Documents,
or has been damaged prior to ENGINEER's
recommendation of final payment.
19. Documents --Data, reports, Drawings,
Specifications, Record Drawings, and other
deliverables, whether in printed or electronic media
format, provided or furnished in appropriate phases by
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. Effective Date of the Construction
Agreement --The date indicated in the Construction
Agreement on which it becomes effective, but if no
such date is indicated, it means the date on which the
Construction Agreement is signed and delivered by the
last of the two parties to sign and deliver.
22. Effective Date of the Agreement --The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered
by the last of the two parties to sign and deliver.
23. ENGINEER'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 ENGINEER's Consultants.
24. Field Order --A written order issued by
ENGINEER which directs minor changes in the Work
but which does not involve a change in the Contract
Price or the Contract Times.
25. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
26. Hazardous Environmental Condition --The
presence related to the existing water lines of Asbestos,
PCBs, 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.
27. Hazardous Waste --The tenn 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.
28. 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.
29. PCB's--Polychlorinated biphenyls.
30. Petroleum --Petroleum, including crude oil or
any fi-action thereof which is liquid at standard
conditions of temperature and pressure (60 degrees
Fahrenheit and 14.7 pounds per square inch absolute),
such as oil, petroleum, fuel oil, oil sludge, oil refuse,
gasoline, kerosene, and oil mixed with other non -
Hazardous Waste and crude oils.
31. 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.
32. Record Drawings --The Drawings as issued
for construction on which the ENGINEER, upon
completion of the Work, has shown changes due to
Addenda or Change Orders and other information
which ENGINEER considers significant based on
record documents furnished by Contractor to
ENGINEER and which were annotated by Contractor
to show changes made during construction.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 10 of 13
33. Reimbursable Expenses --The expenses
incurred directly by ENGINEER in connection with the
performing or fumishing of Basic and Additional
Services for the Project for which OWNER shall pay
ENGINEER as indicated in Exhibit C.
34. Resident Project Representative --The
authorized representative of ENGINEER, if any,
assigned to assist ENGINEER at the Site during the
Construction Phase. The Resident Project
Representative will be 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 to by OWNER. The duties and
responsibilities of the Resident Project Representative
are as set forth in Exhibit D.
35. 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.
36. Shop Drawings --All drawings, diagrams,
illustrations, schedules, and other data or information
which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to ENGINEER
to illustrate some portion of the Work.
37. Site --Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which
the Work is to be performed, rights -of -way and
easements for access thereto, and such other lands
furnished by OWNER which are designated for use of
Contractor.
38. Specifications --That part of the Contract
Documents consisting of written technical descriptions
of materials, equipment, systems, standards, and
workmanship as applied to the Work and certain
administrative details applicable thereto.
39. Substantial Completion --The time at which
the Work (or a specified part thereof) has progressed to
the point where, in the opinion of ENGINEER, the
Work (or a specified part thereof) is sufficiently
complete, in accordance with the Contract Documents,
so that the Work (or a specified part thereof) can be
utilized for the purposes for which it is intended. The
terms "substantially complete" and "substantially
completed" as applied to all or part of the Work refer
to Substantial Completion thereof.
40. Supplementary Conditions --That part of the
Contract Documents which amends or supplements the
General Conditions.
41. Total Project Costs --The surn of the Construction
Cost, allowances for contingencies, the total 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 B of this Agreement.
42. 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
famishing 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.
43. Work Change Directive --A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the ENGINEER, ordering an addition,
deletion, or revision in the Work, or responding to differing
or unforeseen subsurface or physical conditions under
which the Work is to be performed or to emergencies. A
Work Change Directive will not change the Contract Price
or the Contract Times but is evidence that the parties expect
that the change directed or documented by a Work Change
Directive will be incorporated in a subsequently issued
Change Order following negotiations by the parties as to its
effect, if any, on the Contract Price or Contract Times.
44. 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 nonnally dealing with the non -engineering or non-
technical rather than strictly construction -related aspects of
the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "ENGINEER's Services," consisting of
5 pages.
B. Exhibit B,
consisting of 3 pages.
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page I 1 of 13
"OWNER's Responsibilities,"
C. Exhibit C, "Payments to Engineer for Services and
Reimbursable Expenses," consisting of 1 page.
D. Exhibit D, "Duties, Responsibilities and
Limitations of Authority of Resident Project
Representative," consisting of 4 pages.
E. Exhibit E, "Notice of Acceptability of Work,"
consisting of 2 pages.
F. Exhibit F, "Construction Cost Limit," consisting of
l page.
G. Exhibit G, "Insurance," consisting of 1 page,
H. Exhibit H, "Allocation of Risks," consisting of 1
page.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 13
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 by a written
instrument duly executed by the OWNER and ENGINEER.
(The remainder of this page was intentionally left blank)
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 12 of 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on
page I.
OWNER: ity of Lubboc exas ENCi1N R: HDR Engineering, inc.
By: By:_ 1
Title: Ma or Title: L}CLC�cI i+K' ilLL rf "r+c-� fC��a,
Date Signed: 0-27-05 Date Signed: 1oli�/DJ
ATTEST:
City
Address for giving notices:
PO Box 2000
1625 13" Street
Lubbock, TX 79457
Designated Representative (paragraph 6.02,A):
Wood Franklin, P.E.
Title: Interim Chief Engineer
Phone Number: 806-775-2343
Facsimile Number: 806-775-3344
E-Mail Address: wfranklin@mail.ci.lubbock.tx.us
AS 1 o rti?-r-E�►U'
Address for giving notices:
4401 West Gate Blvd.
Suite 400
Austin, TX 78745
Designated Representative (paragraph 6.02.A):
Duwain Whitis, P.E.
Title: Project Manager
Phone Number: 512-912-5100
Facsimile Number: 512-912-5158
E-Mail Address: duwain.whitis@hdrinc.com
Standard Form of Agreement
Between Owner and Engineer for Professional Services
Page 13 of 13
EXHIBIT B
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
This is EXHIBIT B, consisting of 3 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated October 27th
2005.
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 and in the possession of
OWNER including reports and data relative to previous designs.
C. Following ENGINEER's assessment of initially -available Project information and data and upon
ENGINEER's request, furnish or otherwise make available such additional Project related information and data as is
reasonably required to enable ENGINEER to complete its Basic and Additional Services. Such additional information
or data would generally include the following:
1. Property descriptions in the possession of OWNER.
2. Zoning, deed, and other land use restrictions.
3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing
relevant reference points.
4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical
conditions in or relating to existing surface or subsurface structures at or contiguous to the Site, or hydrographic
surveys, with appropriate professional 'interpretation thereof.
5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental
or cultural studies as to the Project, the Site, and adjacent areas.
6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the
Exhibits thereto.
D. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of a
Hazardous Environmental Condition or of any other development that affects the scope or time of performance of
ENGINEER's services, or any defect or nonconformance in ENGINEER's services or in the work of any Contractor.
Page] of 3 Pages
(Exhibit B - OWNER's Responsibilities)
E. Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as
required.
F. Arrange for safe 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.
H. Provide reviews, approvals, and permits from all governmental authorities having jurisdiction to approve all
phases of the Project designed or specified by ENGINEER and such reviews, approvals, and consents from others as
may be necessary for completion of each phase of the Project.
I. Provide, as required for the Project:
1. Accounting, bond and financial advisory, independent cost estimating, and insurance counseling services.
2. Legal services with regard to issues pertaining to the Project as OWNER requires or deems appropriate,
Contractor raises, or ENGINEER reasonably requests, including but not limited to any bidding or contract
documents prepared or supplied to OWNER by ENGINEER.
3. Such auditing services as OWNER requires to ascertain how or for what purpose Contractor has used the
moneys paid.
4. Placement and payment for advertisement for Bids in appropriate publications.
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 Iimited to, cost estimating, project
peer review, value engineering, and constructibility review.
K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's
opinion of Total Project Costs.
L. If OWNER designates a construction manager or an individual or entity other than, or in addition to,
ENGINEER to represent OWNER at the Site, define and set forth as an attachment to this Exhibit B the duties,
responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and
authority of ENGINEER.
M. If more than one prime contract is to be awarded for the Work designed or specified by ENGINEER, designate
a person or entity to have authority and responsibility for coordinating the activities among the various prime
Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity
and the relation thereof to the duties, responsibilities, and authority of ENGINEER as an attachment to this Exhibit B
that is to be mutually agreed upon and made a part of this Agreement before such services begin.
N. Attend the pre -bid conference, bid opening, pre -construction conferences, construction progress and other job
related meetings, and Substantial Completion and final payment inspections.
O. Except as provided by the construction contractor(s), provide the services of an independent testing laboratory
to perform all inspections, tests, and approvals of Samples, materials, and equipment required by the Contract
Documents, or to evaluate the performance of materials, equipment, and facilities of OWNER, prior to their
incorporation into the Work with appropriate professional interpretation thereof.
Page 2 of 3 Pages
(Exhibit B - OWNER's Responsibilities)
P. Provide inspection or monitoring services by an individual or entity other than ENGINEER (and disclose the
identity of such individual or entity to ENGINEER) as OWNER determines necessary to verify:
1. That Contractor is complying with any Laws and Regulations applicable to Contractor's perfonning and
furnishing the Work.
2. That Contractor is taking all necessary precautions for safety of persons or property and complying with
any special provisions of the Contract Documents applicable to safety.
Q. Provide ENGINEER with the findings and reports generated by the entities providing services pursuant to
paragraphs B2.01.0 and P.
Page 3 of 3 Pages
(Exhibit B - OWNER'S Responsibilities)
EXHIBIT C
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
This is EXHIBIT C, consisting of 1 page, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated October 21 , 2005.
,initial:
OWNER —
ENGINEER rix-Al
Pavments to ENGINEER for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and 4. The portion of the Lump Sum amount
supplemented to include the following agreement of billed for ENGINEER's services will be based
the parties: upon ENGINEER's estimate of the proportion of
the total services actually completed during the
ARTICLE 4 -- PAYMENTS TO THE ENGINEER billing period to the Lump Sum.
C4.01 For ,basic Services Having A Determined
Scope --Lump Sum Method of Payment
A. OWNER shall pay ENGINEER for Basic
Services set forth in Exhibit A, except for services of
ENGINEER's Resident Project Representative and
Post -Construction Phase services, if any, as follows:
1. A Lump Sum amount of $183,850.00
based on the following assumed distribution of
compensation:
a. Study and Report Phase $183,850.00
b. Preliminary Design Phase $ TBD*
c. Final Design Phase $ T�D*
d. Bidding and Negotiating Phase$ TBD*
e. Construction Phase $ TBD*
*To be negotiated upon completion of the
Study and Report Phase.
2. ENGINEER may alter the distribution
of compensation between individual phases
noted herein to be consistent with services
actually rendered, but shall not exceed the total
Lump Sum amount unless approved in writing by
the OWNER.
3. The Lump Sum includes compensation
for ENGINEER's services and services of
ENGINEER's Consultants, if any. Appropriate
amounts have been incorporated in the Lump
Sum to account for labor, overhead, profit, and
Reimbursable Expenses.
5. The Lump Sum is conditioned on
Contract Times to complete the Work not
exceeding six months. Should the Contract
Times to complete the Work be extended beyond
this period at no fault of the ENGINEER, the
total compensation to ENGINEER shall be
appropriately adjusted.
Page 1 of 1 pages
Sheet C-1 (Exhibit C - Basic Services With Determined Scope -- Lump Sum Method)
Resolution No, 2005-RO500
EXHIBIT D
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
This is EXHIBIT D, consisting of 4 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated October 27
2005.
nrtial:
OWNER _
ENGINEER
Duties, Responsibilities, and Limitations of Authority of Resident Project Representative
Paragraph 1.01 C of the Agreement is amended and supplemented to include the following agreement of the parties:
D6.02 Resident Project Representative
A. If authorized by amendment to this Agreement, ENGINEER shall furnish a Resident Project Representative
("RPR"), assistants, and other field staff to assist ENGINEER in observing progress and quality of the Work. The
RPR, assistants, and other field staff under this Exhibit D may provide full time representation or may provide
representation to a lesser degree.
B. Through such additional observations of Contractor's work in progress and field checks of materials and
equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against
defects and deficiencies in the Work. However, 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 the Contractor's Work nor
shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures
selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, for any
failure of Contractor to comply with Laws and Regulations applicable to Contractor's performing and furnishing the
Work, or responsibility of construction for Contractor's failure to furnish and perform the Work in accordance with
the Contract Documents. In addition, the specific limitations set forth in section A.1.05 of Exhibit A of the
Agreement are applicable, if any.
C. The duties and responsibilities of the RPR are limited to those of ENGINEER in the Agreement with the
OWNER and in the Contract Documents, and are further limited and described as follows:
1. General: RPR is ENGMEER's agent at the Site, will act as directed by and under the supervision of
ENGINEER, and will confer with ENGINEER regarding RPR's actions. RPR's dealings in matters
pertaining to the Contractor's work in progress shall in general be with ENGINEER and Contractor,
keeping OWNER advised as necessary. RPR's dealings with subcontractors shall only be through or
with the full knowledge and approval of Contractor. RPR shall generally communicate with OWNER
with the knowledge of and under the direction of ENGINEER.
2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and
schedule of values prepared by Contractor and consult with ENGINEER concerning acceptability.
3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences,
progress meetings, job conferences and other project -related meetings, and prepare and circulate copies
of minutes to all attendees of said meetings.
4. Liaison:
a. Serve as ENGINEER's liaison with Contractor, working principally through Contractor's
superintendent and assist in understanding the intent of the Contract Documents.
Page I of 4 Pages
(Exhibit D - Resident Project Representative)
b. Assist ENGINEER in serving as OWNER'S liaison with Contractor when Contractor's operations
affect OWNER'S on -Site operations.
c. Assist in obtaining from OWNER additional details or information, when required for proper
execution of the Work.
S. Interpretation of Contract Documents: Report to ENGINEER when clarifications and interpretations of
the Contract Documents are needed and transmit to Contractor clarifications and interpretations as
issued by ENGINEER.
b. Shop Drawings and Samples:
a. Record date of receipt of Samples and approved Shop Drawings.
b. Receive Samples which are furnished at the Site by Contractor, and notify ENGINEER of
availability of Samples for examination.
Advise ENGINEER and Contractor of the commencement of any portion of the Work requiring a
Shop Drawing or Sample submittal for which RPR believes that the submittal has not been
approved by ENGINEER.
7. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings or
Specifications and report with RPR's recommendations to ENGINEER. Transmit to Contractor in
writing decisions as issued by ENGINEER.
Review of Work and Rejection of Defective Work:
a. Conduct on -Site observations of Contractor's work in progress to assist ENGINEER in
determining if the Work is in general proceeding in accordance with the Contract Documents.
b. Report to ENGINEER and Owner's Representative whenever RPR believes that any part of
Contractor's work in progress will not produce a completed Project that conforms generally to the
Contract Documents or will prejudice the integrity of the design concept of the completed Project
as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not
meet the requirements of any inspection, test or approval required to be made; and advise
ENGINEER of that part of work in progress that RPR believes should be corrected or rejected or
should be uncovered for observation, or requires special testing, inspection or approval.
9. Inspections, Tests, and System Startups:
a. Consult with ENGINEER and Owner's Representative in advance of scheduled major inspections,
tests, and systems startups related to phases of the Work.
b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are
conducted in the presence of appropriate OWNER'S personnel, and that Contractor maintains
adequate records thereof.
c. Observe, record, and report to ENGINEER appropriate details relative to the test procedures and
systems startups.
d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the
Project, record the results of these inspections, and report to ENGINEER.
10. Records:
a. Maintain at the Site orderly files for correspondence, reports of job conferences, reproductions of
original Contract Documents including all Change Orders, Field Orders, Work Change Directives,
Addenda, additional Drawings issued subsequent to the execution of the Contract, ENGINEER's
Page 2 of 4 Pages
(Exhibit D - Resident Project Representative)
clarifications and interpretations of the Contract Documents, progress reports, Shop Drawing and
Sample submittals received from and delivered to Contractor, and other Project related documents.
b. Prepare a daily report or keep a diary or log book, recording Contractor's hours on the Site,
weather conditions, data relative to questions of Change Orders, Field Orders, Work Change
Directives, or changed conditions, Site visitors, daily activities, decisions, observations in general,
and specific observations in more detail as in the case of observing test procedures; and send
copies to ENGINEER.
c. Record names, addresses and telephone numbers of all Contractors, subcontractors, and major
suppliers of materials and equipment.
d. Maintain records for use in preparing Project documentation.
e. Upon completion of the Work, furnish original set of all RPR Project documentation to
ENGINEER.
11, Reports:
a. Furnish to ENGINEER periodic reports as required of progress of the Work and of Contractor's
compliance with the progress schedule and schedule of Shop Drawing and Sample submittals.
b. Draft and recommend to ENGINEER proposed Change Orders, Work Change Directives, and
Field Orders. Obtain backup material from Contractor.
c. Furnish to ENGINEER and OWNER copies of all inspection, test, and system startup reports.
d. Report immediately to ENGINEER the occurrence of any Site accidents, any Hazardous
Environmental Conditions, emergencies, or acts of God endangering the Work, and property
damaged by fire or other causes.
12. Payment Requests: Review Applications for Payment with Contractor for compliance with the
established procedure for their submission and forward with recommendations to ENGINEER, noting
particularly the relationship of the payment requested to the schedule of values, Work completed, and
materials and equipment delivered at the Site but not incorporated in the Work.
13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials
and equipment certificates, operation and maintenance manuals and other data required by the
Specifications to be assembled and furnished by Contractor are applicable to the items actually
installed and in accordance with the Contract Documents, and have these documents delivered to
ENGINEER for review and forwarding to OWNER prior to payment for that part of the Work.
14. Completion:
a. Before ENGINEER issues a Certificate of Substantial Completion, submit to Contractor a list of
observed items requiring completion or correction.
b. Observe whether Contractor has arranged for inspections required by Laws and Regulations,
including but not limited to those to be performed by public agencies having jurisdiction over the
Work.
c. Participate in a final inspection in the company of ENGINEER, OWNER, and Contractor and
prepare a final list of items to be completed or corrected.
d. Observe whether all items on final list have been completed or corrected and make
recommendations to ENGINEER concerning acceptance and issuance of the Notice of
Acceptability of the Work.
Page 3 of 4 Pages
(Exhibit D - Resident Project Representative)
D. Resident Project Representative shall not:
1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including
"or -equal" items).
2. Exceed limitations of ENGINEER's authority, if any, as set forth in the Agreement or the Contract
Documents.
3. Undertake any of the responsibilities of Contractor, subcontractors, suppliers, or Contractor's
superintendent.
4. Advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques,
sequences or procedures of Contractor's work unless such advice or directions are specifically required by
the Contract Documents.
S. Advise on, issue directions regarding, or assume control over safety precautions and programs in connection
with the activities or operations of OWNER or Contractor.
6. Participate in specialized field or laboratory tests or inspections conducted off -site by others except as
specifically authorized by ENGINEER.
7. Accept Shop Drawing or Sample submittals from anyone other than Contractor.
8. Authorize OWNER to occupy the Project in whole or in part.
Page 4 of 4 Pages
(Exhibit D - Resident Project Representative)
EXHIBIT E
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
This is EXHIBIT E, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated nrrober27
2005.
OWNER
ENGINEEi
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
ENGINEER:
To: OWNER
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.
0
Title:
Dated:
Page 1 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
(Reverse side 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:
I . 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.
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 under the Construction Contract
referenced on the reverse hereof, and applies only to facts that are within ENGINEER's knowledge or could
reasonably have been ascertained by ENGINEER as a result of carrying out the responsibilities specifically
assigned to ENGINEER under ENGINEER's Agreement with OWNER and the Construction Contract
referenced on the reverse hereof.
5. Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Construction Contract
referenced on the reverse hereof nor an assumption of responsibility for any failure of CONTRACTOR to
furnish and perform the Work thereunder in accordance with the Contract Documents.
Page 2 of 2 Pages
(Exhibit E - Notice of Acceptability of Work)
EXHIBIT F
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
[RESERVED]
Page 1 of ] Page
(Exhibit F — Reserved)
EXHIBIT G
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated tlernhPr 77
2005.
Iz1itiaL
OWNER
ENGINEER
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
A. The types and limits of liability for the insurance required by paragraph 6.05.A and 6.05.B of the
Agreement are as follows:
1. By ENGINEER:
The ENGINEER shall procure and maintain the following types and limits of insurance for the duration of
the Work:
Type of Insurance Limits of Liability
Worker's Compensation As noted below.
Employer's Liability $500,000 each accident, $500,000 by disease
policy limit, and $500,000 by disease each
employee
Commercial General Liability --Personal $1,000,000 combined single limit per occurrence
Injury/Property Damage
Automobile Liability --Bodily Injury and Property $1,000,000 combined single limit per occurrence
Damage - Hired car, owned and non -owned autos
Professional Liability
$1,000,000 per claim
Workers' Compensation: ENGINEER shall elect to obtain workers compensation coverage pursuant to Section
406.002 of the Texas Labor Code. Further, ENGINEER shall maintain said coverage throughout the term of this
agreement and shall comply with all provision of Title 5 of the Texas Labor Code to ensure that the ENGINEER
maintains said coverage. Any termination of workers compensation insurance coverage by ENGINEER or any
cancellation or non -renewal of workers compensation insurance coverage for the Engineer shall be a material breach
of this contract. The ENGINEER may maintain Occupational Accident and Disability Insurance in lieu of Workers
Compensation. In either event, the Policy must be endorsed to include a waiver of subrogation in favor of the City of
Lubbock.
Page 1 of 2 Pages
(Exhibit G — Insurance)
The commercial general liability insurance required above will include contractual liability coverage, and the
commercial general liability and automobile liability insurance policies shall name Owner as an additional insured.
Upon request, a signed Certificate or Certificates of Insurance shall be furnished to Owner before any services are
performed or furnished by Architect under this Agreement. Such Certificate or Certificates of Insurance shall
provide for thirty (30) days written notice to Owner prior to cancellation or material modification of any insurance
referred to therein.
Page 1 of 2 Pages
(Exhibit G — Insurance)
EXHIBIT H
OF
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
This is EXHIBIT H, consisting of 1 page, referred to in and
part of the Agreement between OWNER and ENGINEER
for Professional Services dated
2005.
ial:
OWNER
ENGINEER
Allocation of Risks
Paragraph 6.11 of the Agreement is amended and supplemented to include the following agreement of the parties:
H6.1 LB Limitation of ENGINEER's Liability
1. Agreement Not to Claim for Cost of Certain Change Orders. OWNER recognizes and expects that certain
Change Orders may be required to be issued as the result in whole or part of imprecision, incompleteness, errors,
omissions, ambiguities, or inconsistencies in the Drawings, Specifications, and other design documentation furnished
by ENGINEER or in the other professional services performed or furnished by ENGINEER under this Agreement
("Covered Change Orders"). Accordingly, OWNER agrees not to sue and otherwise to make no claim directly or
indirectly against ENGINEER on the basis of professional negligence, breach of contract, or otherwise with respect
to the costs of approved Covered Change Orders unless the costs of such approved Covered Change Orders exceed
10% of Construction Cost, and then only for an amount in excess of such percentage. Any responsibility of
ENGINEER for the costs of Covered Change Orders in excess of such percentage will be determined on the basis of
applicable contractual obligations and professional liability standards. For purposes of this paragraph, the cost of
Covered Change Orders will not include any costs that OWNER would have incurred if the Covered Change Order
work had been included originally without any imprecision, incompleteness, error, omission, ambiguity, or
inconsistency in the Contract Documents and without any other error or omission of ENGINEER related thereto.
Nothing in this provision creates a presumption that, or changes the professional liability standard for determining if,
ENGINEER is liable for the cost of Covered Change Orders in excess of the percentage of Construction Cost stated
above or for any other Change Order. Wherever used in this paragraph, the term ENGINEER includes
ENGINEER's officers, directors, partners, employees, agents, and ENGINEER's Consultants.
OWNER further agrees not to sue and otherwise to make no claim directly or indirectly against ENGINEER with
respect to any Covered Change Order not in excess of such percentage stated above, and OWNER agrees to hold
ENGINEER harmless from and against any suit or claim made by the Contractor relating to any such Covered Change
Order.
Page 1 of 1 Pages
(Exhibit H — Allocation of Risk)