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Resolution - 2007-R0376 - Contract - HDR Engineering Inc.- Storm Water Drainage Issue Engineering Services - 08/23/2007
Resolution No. 2007-80376 August 23, 2007 Item No. 5.9 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council of the City of Lubbock hereby authorizes and directs the Mayor of the City of Lubbock to execute a Professional Engineering Services Contract by and between the City of Lubbock and HDR Engineering, Inc., of Austin, Texas, for engineering services related to storm water drainage issues in Mose Hood and Stumpy Hamilton parks, which Contract and any associated documents, are attached hereto and made a part of this Resolution for all intents and purposes. Passed by the City Council this 23rd day of August , 2007. 01 f DAVID A. MILLER, MAYOR ATTEST: Reb cca +Garza, City Secretary APPROVED AS TO CONTENT: Michael G. Keenum, P.E. Storm Water Engineer APPROVED AS FORM: bon Vandiver, ttorney of DDres/HDR-EngSvcs07CoTiRes August 9, 2007 CONITRA T NO. Resolution No. 2007—RO376 7 Ui 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. 191047) (1996 Edition). For guidance on the completion and use of this Agreement, see EJCDC Users Guide, No. 1910-50. Copyright ©1996 National Society of Professional Engineers 1420 King Street, Alexandria, VA 2231.4 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 Paye ARTICLE l - 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 ARTICLE5 - 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 Resolution........................................................................................................................................ 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............................................................................................................................ ............, 6.16 Headings............................................................................................................................. .... 8 ARTICLE7 - DEFINITIONS.............................................................................................................................................. 9 7.01 Defined Terms.............................................................................................................................................. 9 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS............................................................................................... 11 8.01 Exhibits Included......................................................................................................................................... 11 8.02 Total Agreement.......................................................................................................................................... 12 Resolution No. 2007—RO376 AGREEMENT BETWEEN THE CITY OF LUBBOCK, TEXAS AND HDR ENGINEERING, INC. FOR PROFESSIONAL ENGINEERING SERVICES THIS IS AN AGREEMENT effective as of August 23 , 2007 ("Effective Date") between The City of Lubbock, Texas ("OWNER") and HDR Engineering, Inc. ("ENGINEER"). OWNER intends to improve drainage conditions in Mose Hood and Stumpy Hamilton Parks as follows (all improvements described below are collectively referred to herein as the "Project): Mose Hood Park and Stumpy Hamilton Park serve as dual function facilities in that they incorporate recreational facilities including picnic areas, playgrounds, and various ball fields within regional stormwater detention basins. Stagnant water ponds in the primary concrete conveyance channels within the parks after rainfall events. The stagnant water creates odor problems, provides a breeding environment for mosquitoes, and makes the areas an overall unpleasant environment. These improvements may include enclosing all or a portion of the existing open channels. The drainage improvements developed shall not adversely impact the current flooding characteristics of the drainage system for which these two stormwater management facilities reside. 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 perfonned 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 4.0I.B, 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 tennination, 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, CONSIDERA"T"IONS 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 shall 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, summaries, 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 5of13 in performing this Agreement, whether completed or in terms hereof through no fault of the tenninating process. party. 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 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 40 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 parry 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.I 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 Project. 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 6.11.A.1 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 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. 6. 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 the Contract Times, issued on or after the Effective Date of the Construction Agreement. 10. Construction Agreement --The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the 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 I3 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 Project lines of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 27. Hazardous Waste --The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 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 fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil 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 furnishing 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 sum 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 fumishing 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 normally dealing with the non -engineering or non- technical rather than strictly construction -related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included 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 11 of 13 "OWNER's Responsibilities," C. Exhibit C, "Payments to Engineer for Services and Reimbursable Expenses," consisting of l page. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative," consisting of pages. E. Exhibit E, "Notice of Acceptability of Work," consisting of 2 pages. F. Exhibit F, "Construction Cost Limit," consisting of 1 page. G. Exhibit G, "Insurance," consisting of I page. H. Exhibit H, "Allocation of Risks," consisting of I 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 Resolution No. 2007-80376 EXHIBIT A OF STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER This is EXHIBIT A, consisting of 5 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Au stuff, 2007. ENGINEER's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART 1 -- BASIC SERVICES A1.01 Study and Report Phase (A Study and Report Phase will not be required) A1.02 Preliminary Design Phase A. ENGINEER shall: 1. Task 1 — Data Collection: ENGINEER will collect available and pertinent information regarding the Project and make at least one (1) site visit to become familiar with and verify existing conditions. Consultant's services will be limited to collection of existing data available from the OWNER and utility providers with facilities in the vicinity of the two Project sites. Consultant's services do not include any field verification or location of facilities. ENGINEER will employ the services of a Consultant to provide topographic survey of the two Project sites as required for analysis and design of improvements. OWNER's Responsibilities: OWNER shall furnish available information regarding existing site and stormwater facilities; furnish other information regarding the OWNER's stormwater management system upon request of ENGINEER. 2. Task 2 — Existing Stormwater System Analysis: ENGINEER will analyze the existing stormwater detention facilities to obtain baseline water surface elevations that cannot he exceeded upon the installation of any proposed channel and detention basin outlet improvements. 3. Task 3 — Channel Improvements Alternatives Analysis: ENGINEER will develop up to three (3) channel improvement conceptual designs and develop a recommended plan that mitigates the existing problems with standing water and sediment aggredation in the existing channels while not adversely impacting the existing storage and discharge characteristics of the existing stormwater system. ENGINEER will analyze the existing stormwater detention facilities with the recommended improvements incorporated to verify that no adverse impacts to the existing storage and discharge characteristics are caused. OWNER's Responsibilities: Review/discuss alternatives analysis and provide direction to ENGINEER in a timely manner as to which design alternatives) to proceed with. 4. Task 4 -- Opinion of Probable Construction Cost: ENGINEER will prepare opinion of probable Construction Cost for the preliminary Project improvements. Each opinion will be based on recent bid tabulations for similar work available to ENGINEER and/or provided by the OWNER. ENGINEER will furnish a PDF copy to OWNER. OWNER's Responsibilities: Furnish bid tabulations available to the OWNER (if any) for similar projects in the Lubbock area within the previous 36 months. Review the opinion and provide review comments to ENGINEER in a timely manner. B. ENGINEER shall complete each task within the following time periods: Page 1 of 4 Pages (Exhibit A - ENGINEER's Services) 1. Task 1 - Data Collection: Data collection including Survey within 45 days of receipt of notice to proceed. 2. Task 2 - Existing Stormwater System Analysis: Within 30 days of receipt of topographic survey data. 3. Task 3&4 — Channel Improvements Alternatives Analysis ftinion of Probable Construction Cost: Delivery of draft technical memoranda within 60 days of completion of Task 2 — Existing Stormwater System Analysis. A1,03 Final Design Phase (To be negotiated upon completion of the Study and Report Phase) A 1.04 Bidding or Negotiating Phase (To be negotiated upon completion of the Study and Report Phase) A1.05 Construction Phase (To be negotiated upon completion of the Study and Report Phase) A1.06 Post -Construction Phase (To be negotiated upon completion of the Study and Report Phase) PART 2 -- ADDMONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in size, complexity, OWNER's schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement or are due to any other causes beyond ENGINEER's control. 4. Services resulting from OWNER's request to evaluate additional Study and Report Phase alternative solutions beyond those identified in paragraph A1.0I.A.4. 5. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B. 6. Providing renderings or models for OWNER's use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, Page 2 of 4 Pages (Exhibit A - ENGINEER's Services) rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by OWNER. 8. Furnishing services of ENGINEER's Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in paragraph Al .03.C. 10. Services during out-of-town travel required of ENGINEER other than for visits to the Site or OWNER's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and constructibility review requested by OWNER; and perforating or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by OWNER for the Work or a portion thereof. 13. Determining the acceptability of substitute materials and equipment proposed during the Bidding or Negotiating Phase when substitution prior to the award of contracts is allowed by the Bidding Documents. 14. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by Exhibit F. 15. Providing construction surveys and staking to enable Contractor to perform its work other than as required under paragraph A 1.05.A.5, and any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 16. Providing Construction Phase services. 17. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current Laws and Regulations. 18. Preparing and furnishing to OWNER Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. 19. Preparation of operation and maintenance manuals. 20. Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other dispute resolution process related to the Project. 21. Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.0 LG of the Agreement. 22. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. A2.02 Required Additional Services A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing within seven days after starting any such Additional Services. 1. Services in connection with Work Change Directives and Change Orders to reflect changes requested by OWNER so as to make the compensation commensurate with the extent of the Additional Services rendered. Page 3 of 4 Pages (Exhibit A - ENGINEER's Services) 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than "or -equal" items; and services after the award of the Construction Agreement in evaluating and determining the acceptability of a substitution which is found to be inappropriate for the Project or an excessive number of substitutions. 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by fire or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 5. Services (other than Basic Services during the Post -Construction Phase) in connection with any partial utilization of any part of the Work by OWNER prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. Page 4 of 4 Pages (Exhibit A - ENCINEER's Services) Resolution No. 2007—R0376 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 Aup-ust 7 2007. 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 ENGWEER'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. E. Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required. Page 1 of 3 Pages (Exhibit B - OWNER's Responsibilities) 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 limited 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 he 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. 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: Page 2 of 3 Pages (Exhibit B - OWNER's Responsibilities) 1. That Contractor is complying with any Laws and Regulations applicable to Contractor's performing 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.O and P. Page 3 of 3 Pages (Exhibit B - OWNER's Responsibilities) Resolution No. 2007—RO376 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 August 7 2007. Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 -- PAYMENTS TO THE ENGINEER C4.01 For 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 $32,220.00 based on the following assumed distribution of compensation: a. Field Survey $21,735.00 b. Preliminary Design Phase $10,485.00 c. Final Design Phase $ TBD* d. Bidding and Negotiating Phase$ TBD* e. Construction Phase $ TBD* *To be negotiated upon completion of the Preliminary Design 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. 4. The portion of the Lump Sum amount billed for ENGINEER's services will be based upon ENGINEER's estimate of the proportion of the total services actually completed during the billing period to the Lump Sum. 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 I pages Sheet G1 (Exhibit C - Basic Services With Determined Scope -- Lump Sum Method) Resolution No. 2007—RO 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 _ August 7 , 2007. 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 ('WR"), 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 ENGINEER'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 1 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. 5. 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. 6. 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. c. 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. 8. 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. 5. 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. S. Authorize OWNER to occupy the Project in whole or in part. Page 4 of 4 Pages (Exhibit D - Resident Project Representative) Resolution No. 2007—RO376 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 Auggst 7 2007. NOTICE OF ACCEPTABILI'T'Y 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 Worm 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: 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. 4. 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) EXMBIT F OF STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER [RESERVED] Page 1 of 1 Page (Exhibit F — Reserved) EXIT 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 Auizust 7 , 2007. 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: Tuve 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 2 of 2 Pages (Exhibit G — Insurance) Resolution No. 2007-80376 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 August 7 2007. Allocation of Risks Paragraph 6.11 of the Agreement is amended and supplemented to include the following agreement of the parties: H6.11.11 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. Pagel of 1 Pages (Exhibit H — Allocation of Risk) IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on. page 1. OWNER City of Lubbock, lex-as By: f Title: David A. Miller, Mayor Date Signed: August 23, 2007 ATTEST: - J_�c Cit Secretary Address for giving notices: PO Box 2000 1625 13' Street Lubbock TX 79457 Designated Representative (paragraph 6.02.A) Michael Keenum P.G. ENGINEER: N R Engineering, In By: Title: Senior Vice ident Date Signed: 0Z710 Address for giving notices: 4401 West Gate Blvd. Suite 400 Austin, TX 78745 Designated Representative (paragraph 6.02.A): Cris Parker P.E. CFM Title: Stormwater Engineer Title: Project Manager Phone Number: 806-775-2393 Facsimile Number: 806-775-3074 E -Mail Address. inkeenum a,mylubbock.us Approved as to Content: Title: S-rve-M w+t-r rL EAfbrn,ezrW— Phone Number: 512-912-5156 Facsimile Number: 512-912-5158 E -Mail Address: cristoplier.parkerrr�hdrinc.com Standard Form of Agreement Between Owner and Engineer for Professional Services Page 13 of 13 Resolution No. 2007-Ro376 AMENDMENT #2 TO AGREEMENT BETWEEN THE CITY OF LUBBOCK, TEXAS AND HDR ENGINEERING, INC. FOR PROFESSIONAL ENGINEERING SERVICES THIS IS AN AMENDMENT TO THE AGREEMENT dated and effective as of August 23, 2007 between The City of Lubbock, Texas and HDR Engineering, Inc. Owner and Engineer in consideration of their mutual covenants as set forth herein agree to modify the Agreement as follows: Revise Exhibit A, Paragraph A 1.05 to read as follows: A1.05 Construction Phase A. After completion of the Bidding Phase, and upon written authorization from Owner, Engineer shall: 1. Site Visits: Engineer will attend three (3) site visits including one pre - construction meeting, one interim site visit, and one final walk through at substantial completion. Each meeting will cover both work sites. Owner's Responsibilities: OWNER will coordinate the attendance at each meeting of City representatives that will be involved in the project. 2. Clarifications and Interpretations (up to 8 issuances): Issue necessary clarifications and interpretations of the Contract Documents as appropriate for 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 in the Work from the requirements of the Contract Documents. 3. Change Orders and Work Change Directives (up to 4 changes): Recommend Change Orders and Work Change Directives to Owner, as appropriate, and prepare Change Orders and Work Change Directives as required. 4. Submittal Review: Engineer will review construction submittals from the Contractor limited to structural components of the project, as required for compliance with the Contract Documents. Engineer will send copies of reviewed submittals to the OWNER for redistribution. OWNER's Responsibilities: Receive and log construction submittals from the Contractor and provide copies to the Engineer for review. Redistribute copies of reviewed submittals to the Contractor. B. Engineer's services under the Construction Phase will be considered complete on the date when the specified number of deliverables required by paragraphs A 1.05.A.2 & 3 have been delivered to Owner, or when Engineer has issued a certificate of substantial completeness of the Work. C. Limitation of Responsibilities. Engineer shall not be responsible for reviewing and logging submittals and shop drawings, except as noted in item A. above; receiving and logging Contractor requests for information (BFI's), or reviewing and approving Contractor's monthly pay applications. Engineer shall not be responsible for the acts or omissions of any Contractor, or of any subcontractors, suppliers, or other individuals or entities performing or furnishing any of the Work. Engineer shall not be responsible for the failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. Engineer shall not be responsible for changes made to the Contract Documents or directives given to the Contractor by the Owner or anyone other than the Engineer. Revise Exhibit C, Paragraph C4.01A to read as follows: A. OWNER shall pay Engineer for Basic Services set forth in Exhibit A as follows: 1. A Lump Sum amount of $115,111.00 based on the following assumed distribution of compensation: a. Field Survey $21,735.00 b. Preliminary Design Phase $10,485.00 Original Contract Subtotal: $32,220.00 C. Final Design Phase $61,519.00 d. Bidding and Negotiating Phase $10,068.00 e. FEMA CLOMR/LOMR $8,000.00** Amendment #1 Subtotal: $79,587.00 f delete FEMA CLOMR/LOMR 48,000.00" 9. Construction Phase $11,304.00 Amendment 92 Subtotal: $3,304.00 *Not required based on results of floodplain impact analysis. 2.4. (no change) 5. The Lump Sum is conditioned on Contract Times to complete the Work not exceeding twenty-eight (28) 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. IN WITLESS WHEREOF, the parties hereto have executed this Amendment. OWER: City of Lubbock, Texas By: Title: TOM MARTIN, Mayor Date Signed: February 27, 2009 ATTEST: _ City"Secretary Approved: As to Content: Akl_z�'z Title: "-Mee_a-t L -J W -M - F-,-& r ""_&-kz �1 As to F. Title: �' ENGINEER:R Engine ring, Inc. By: Title: 5 ,efir f l�✓t+li_,1A Date Signed: