HomeMy WebLinkAboutRES 98-196 RESOLUTION N0. ,1%�
BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF BEAUMONT:
THAT the City Manager be, and he is hereby, authorized to execute an agreement with
Traffic Engineering & Design Systems, Inc. to provide engineering services for the Neches
River Hike and Bike Trail Project in the amount of $397,004.85. The contract is
substantially in the form attached hereto as Exhibit "A."
PASSED BY THE CITY COUNCIL of the City of Beaumont this the / day of
1998.
- Mayor -
AGREEMENT FOR ENGINEERING SERVICES
This Agreement made as of the day of , 1997 between the City of Beaumont, Texas,hereinafter
referred to as"Owner,"and , hereinafter referred to as "Engineer" for the following
Project: Development and construction of Improvements to the Neches River Hike and Bike Trail, City of
Beaumont,Texas,hereinafter referred to as "Project." The Owner and Engineer agree as set forth below.
ARTICLE 1
ENGINEER'S RESPONSIBILITIES
1.1 ENGINEER'S SERVICES
1.1.1 The Engineer's services consist of those services performed by the Engineer,Engineer's
employees and Engineer's consultants as enumerated in Articles 2 and 3 of this
Agreement and any other services included in Article 11.
1.1.2 The Engineer's services shall be performed as expeditiously as is consistent with a high
degree of professional skill, care, and diligence practiced by Engineers of Jefferson
County and the orderly progress of the Work. The term "high degree of professional
skill" shall require more than mere average professional work, but shall not be
construed herein to require perfection. Upon request of the Owner,the Engineer shall
submit for the Owner's approval a schedule for the performance of the Engineer's
services which may be adjusted as the Project proceeds, and shall include allowances
for periods of time required for the Owner's review and for approval of submissions by
authorities having jurisdiction over the Project. Time limits established by this
schedule and approved by the Owner shall not, except for reasonable cause, be
exceeded by the Engineer or Owner, and any adjustments to this schedule shall be
mutually acceptable to both parties.
1.1.3 The services covered by this Agreement are subject to the time limitations contained
in Subparagraph 10.4.1.
ARTICLE 2
SCOPE OF ENGINEER'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Engineer's Basic Services consist of those described in Paragraphs 2.2 through 2.5
and any other services identified in Article 11 as part of Basic Services, and include
without lirvtation normal structural,mechanical and electrical engineering services and
any other engineering services necessary to produce a set of Construction Documents,
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EXHIBIT "A"
which will be sufficient and adequate to fulfill the purposes of this project(see 2.3.1),
as described by and required in Paragraph 2.4.
2.2 SCHEMATIC DESIGN PHASE
2.2.1 The Engineer,in consultation with the Owner, shall develop a written program for the
Project to ascertain O\vncr's needs and to establish the requirements for the Project.
2.2.2 The Engineer shall provide a preliminary evaluation of the Owner's program,
construction schedule and construction budget requirements,each in terms of the other.
subject to the limitations set forth in Subparagraph x.2.1.
2.2.3 The Engineer shall review Nvith the Owner alternative approaches to design and
construction of the Project.
2.2.4 Based on the mutually agreed-upon program, schedule and construction budget
requirements,the Engineer shall prepare,for approval by the Owner, Schematic Design
Documents consisting of drawings and other documents illustrating the scale and
relationship of Project components. The Schematic Design shall contemplate
compliance with applicable laws,statutes,ordinances,codes and regulations.
2.2.5 The Engineer shall submit to the Owner a preliminary detailed estimate of Construction
Cost based oil current area, volume or other unit costs and which indicates the cost of
each category of work involved in constructing the Project and establishes an elapsed
time factor for the period of time from the conunencement to the completion of
construction.
2.3 DESIGN DEVELOPMENT PHASE
2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized
by the Owner in the program, schedule or construction budget, the Engineer shall
prepare for approval by the Owner, Design Development Documents consisting of
drawings and other doCUlnCI]tS to fix and describe the size and character of the Project
as to engineering,structural and electrical systems,materials and such other elements
as may be appropriate,which shall comply with applicable laws, statutes, ordinances,
codes and regulations. Notwithstanding Owner's approval of the documents, Engineer
will provide Documents and specifications which will be sufficient and adequate to
fuulfill the purposes of the Project.
23.2 The Engineer shall advise the Owner of any adjustments to the preliminary estimate of
Construction Cost in a further Detailed Statement as described in Paragraph 2.2.5.
2.33 Providing design and similar services required for or in connection with the selection,
procurement or installation of benches, lighting and related equipment.
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 Based on the approved Design Development Documents and any further adjustments
in the scope or quality of the Project or in the constriction budget authorized by the
Owner, the Engineer shall prepare, for approval by the Owner, Construction
Documents consisting of Drawings and Specifications setting forth in detail
requirements for the construction of the Project, which shall comply with applicable
laws, statutes, ordinances, codes and regulations.
2.4.2 The Engineer shall, with assistance of the Owner, prepare the necessary bidding
information,bidding forms,the Conditions of the contract, and the form of Agreement
between the Owner and contractor, and other required bidding documents necessary to
provide the Owner a completed bid document.
2.4.3 The Engineer shall advise the Owner of any adjustments to previous preliminary
estimates of Construction Cost indicated by changes in requirements or general market
conditions.
2.4.4 The Engineer shall assist the Owner in comlection with the Owner's responsibility for
filing documents required for the approval of other governmental authorities having
jurisdiction over the Project.
2.5 BIDDING
2.5.1 The Engineer,following the Owner's Approval of the Construction Documents and of
the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in
obtaining bids and assist in awarding and preparing contracts for construction.
2.5.2 If the lowest bid for the construction of the Project exceeds the total construction cost
of the Project as set forth in the approved Detailed Statement of Probable Construction
Costs of the Project submitted by the Engineer, then the Engineer, shall under
additional services, Article 3, revise the Construction Documents in a continuous
fashion so that tile\,are completed in a timely manner as may be required by the Owner
to reduce or modify the quantity or quality of the work so that the total construction
cost of the Project will not exceed the total construction cost set forth in the approved
Detailed Statement of Probable Construction Costs.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.l.1 The services described in this Article 3 are not included in Basic Services and they shall
be paid for by the Owner as provided in this Agreement, in addition to the
compensation for Basic Services. The services described under Paragraphs 3.2 and 3.4
shall only be provided if authorized or confirmed in waiting by the Owner. If services
described under Contingent Additional Services in Paragraph 3.3 are required due to
circumstances beyond the Engineer's control, the Engineer shall notify the Owner prior
to Co111111C11CIng such services. If the Owner deems that such services described under
Paragraph 33 are nor required. the Owner shall give prompt written notice to the
Engineer. If the Owner indicates in writing that all or part of such Contingent
Additional Services arc not required, the Engineer shall have no obligation to provide
those services. The Owner will be responsible for compensating the Engineer for
Contingent Additional Services only if they are not required due to the negligence or
fault of Engineer.
3.2 PROJECT REPRESENTATION DURING CONSTRUCTION PHASE
3.2.1 The Engineer shall provide adn1iinistration of the Contract for Construction as set forth
below,unless otherwise provided in this Agreement or approved by the City.
3.2.2 Construction Phase duties,responsibilities and limitations of authority of the Engineer
shall not be restricted, modified or extended without written agreement of the Owner
and Engineer.
3.2.3 The Engineer shall be a representative of and shall advise and consult with the Owner
during construction. The Engineer shall have authority to act on behalf of the Owner
only to the extent provided in this Agreement unless otherwise modified by written
instrument.
3.2.4 The Engineer shall visit the construction site a maximum of 16 hours a week,
regardless of whether construction is in progress,to become familiar with the progress
and quality of the Work completed and to detennine if the Work is being performed in
a manner indicating that the Work, when completed, will be in accordance with the
Contract Documents. The Engineer shall provide Owner a written report subsequent
to each on-site visit. On the basis of on-site observations as an engineer,the Engineer
shall keep the Owner informed of the progress and quality of the Work, and shall
exercise care and diligence in discovering and promptly reporting to the Owner any
defects or deficiencies in the wort: of Contractor or any subcontractors. The Engineer
represents that he will follow high professional standards as described in 1.1.2 herein
in perfonning all Services under this Agreement. The Engineer shall promptly correct
amv defective designs or specifications fiurnished by the Engineer at no cost to the
Owner. The Owner's approval,acceptance,use of or payment for all or any part of the
Engineer's services hereu.ulder or of the Project itself shall in no way alter the Engineer's
obligations or the Owner's rights hereunder.
3.2.5 The Engineer shall not have control over or charge of and shall not be responsible for
Contractor's construction means,methods, techniques,sequences or procedures,or for
safety precautions and programs in connection with the Work. The Engineer shall not
be responsible for the Contractor's schedules or failure to carry out the Work in
accordance with the Contract Documents. The Engineer shall not have control over or
charge of acts or omissions of the Contractor, Subcontractors, or their agents or
employees,or of any other persons perfonning portions of the Work.
3.2.6 The Engineer shall at all times have access to the Work wherever it is in preparation
or progress, but shall have no responsibility for job site safety.
3.2.7 Except as may othenvise be provided in the Contract Documents or when direct
C0 111 111 1.1 111Catlons have been specially authorized, the Owner and Contractor shall
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communicate through the Engineer. Conununi cat ions by and with the Engineer's
consultants shall be through the Engineer.
3.2.8 Based on tine Engineer's observations at the site of the work and evaluations of the
Contractor's Applications for Payment, the Engineer shall review and certify the
amounts due the Contractor.
3.2.9 The Engineer's certification for payment shall constitute a representation to the Owner,
based on the Engineer's observations at the site as provided in Subparagraph 2.6.5 and
on the data comprising the Contractor's Application for Payment,that the Work has
progressed to the point indicated and that the quality of the Work is in accordance with
the Contract Documents. The foregoing representations are subject to minor deviations
from the contract Documents correctable prior to completion and to specific
qualifications expressed by the Engineer. The issuance of a Certificate for Payment
shall fiurther constitute a representation that the Contractor is entitled to payment in the
amount certified. However, the issuance of a Certificate for Payment shall not be a
representation that the Engineer has (1) reviewed construction means, methods,
techniques, sequences or procedures, or(2) ascertained how or for what purpose the
Contractor has used money previously paid on account of the Contract Sum.
3.2.10 The Engineer shall have the authority to reject Work which does not conform to the
Contract DOCUnnents. Whenever the Engineer considers it necessary or advisable for
implementation of the intent of the Contract Documents, the Engineer shall have
authority to regontinend to the Owner additional inspection or testing of the Work in
accordance with the provisions of the Contract Documents,whether or not such Work
is fabricated, installed or completed. However,neither this authority of the Engineer
nor a decision made in good faith either to exercise or not exercise such authority shall
give rise to a duty or responsibility of the Engineer to the Contractor, Subcontractors,
material and equipment suppliers, their agents or employees or other persons
performing Portions of the Work.
3.2.11 The Engineer shall review and approve or take other appropriate action upon
Contractor's submittals such as Shop Drawings, Product Data and Samples for the
purpose of(1) determining compliance with applicable laws, statutes,ordinances and
codes; and (2) determining whether or not the Work will be in compliance with the
requirements of the Contract Documents. The Engineer shall act with such reasonable
promptness to minimize delay in the Work or in the construction of the Owner or of
separate contractors, while allowing sufficient time in the Engineer's professional
judgment to permit adequate review. Review of such submittals is not conducted for
the purpose of determining the accuracy and completeness of other details such as
dimensions and quantutles or for substantiating instructions for installation or
performance of equipment or systems designed by the Contractor, all of which remains
the responsibility of the Contractor to the extent required by the Contract Documents.
The Engineer's review shall not constitute review or approval of safety precautions,nor
of construction means,methods, techniques, sequences or procedures. The Engineer's
approval of a specific item shall not indicate approval of an assembly of which the item
is a component. When professional certification of performance characteristics of
materials,systems or equipment is required by the Contract Documents, the Engineer
shall be entitled to rely upon such certification to establish that the materials, systems
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or equipment will meet the performance criteria required by the Contract Documents.
3.2.12 The Engineer shall prepare Change Orders and Construction Change Directives,with
supporting documentation and data if deemed necessary by the Engineer as provided
in Subparagraphs 3.1.1 and 3.33, for the Owner's approval and execution in
accordance with the Contract Documents, and may authorize minor changes in the
Work not involving an adjustment in the Contract Sum or an extension of the Contract
Time which are consistent with the intent of the Contract Documents.
3.2.13 On behalf of the Owner, the Engineer shall conduct walk through inspections to
determine the dates of Substantial Completion and Final Completion,and shall issue
Certificates of Substantial and Final Completion. The Engineer will receive and review
written guarantees and related documents required by the Contract for Construction to
be assembled by the Contractor and shall issue a final certificate for Payment upon
compliance with the requirements of the Contract Documents.
3.2.14 The Engineer shall interpret and provide recommendations on matters concerning
performance of the Owner and Contractor under the requirements of the Contract
Documents on written request of either the Owner or Contractor. The Engineer's
response to such requests shall be made with reasonable promptness and within any
time limits agreed upon.
3.2.15 Interpretations and decisions of the Engineer shall be consistent with the intent of and
reasonably inferable from the Contract Documents and shall be in writing or in the
form of drawings. When making such interpretations and initial decisions,the Engineer
shall endeavor to secure faithful performance by both Owner and Contractor, and shall
not be liable for results or interpretations or decisions so rendered in good faith in
accordance with all the provisions of this Agreement and in the absence of negligence.
3.2.16 The Engineer shall render written decisions within a reasonable time on all claims,
disputes or other matters in question between the Owner and Contractor relating to the
execution or progress of the Work as provided in the Contract Documents.
3.2.17 The Engineer(1)shall render services under the Agreement in accordance with the high
professional standards as described in paragraph 1.1.2 herein; and (2) by
acknowledging payment by the Owner of any fees due,shall not be released from any
rights the Owner may have under the Agreement or diminish any of the Engineer's
obligations thereunder.
3.3 CONTINGENT ADDITIONAL SERVICES
3.3.1 Making material revisions in Drawings, Specifications or other documents when such
revisions are:
3.3.1.1 inconsistent with approvals or instructions previously given by the Owner,
including revisions made necessary by adjustments in the Owner's program or
Project budget:
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3.3.1.2 required by the enactment or revision of codes,laws or regulations subsequent
to the preparation of such documents,or
3.3.1.3 due to changes required as a result of the Owner's failure to render decision in
a timely manner.
3.3.2 Providing services required because of significant changes in the Project including,but
not limited to,size;quality,compicxity,the ONvner's schedule,or the method of bidding
and contracting for constriction, except for services required under Subparagraph
2.5.2.
3.3.3 The Engineer shall provide documents for alternate, separate or sequential bids or
providing services in connection with bidding or construction prior to the completion
of the Construction Documents Phase.
3.3.4 Providing consultation concerning replacement of Work damaged by fire, flooding or
other cause during constriction,and fiunishing services required in connection with the
replacement of such Work.
3.3.E Providing services made necessary by the default of the Contractor, or by failure of
performance of either the Owner or Contractor under the Contract for Construction.
3.3.6 Providing services in connection with a public hearing, arbitration proceeding or legal
proceeding except where the Engineer is party thereto.
3.3.7 The Engineer shall provide the Owner with one (1) set of reproducible prints showing
all significant changes to [lie Construction Documents during the Construction Phase.
Drawings shall indicate significant changes in the Work made during construction
based on marked-up prints,ch-aNvings and other data furnished by the Contractor to the
Engineer.
3.4 OPTIONAL ADDITIONAL SERVICES
3.4.1 Providing financial feasibility or other special studies.
3.4.2 Providing planning surveys, site evaluations or comparative studies of prospective
sites.
3.4.3 Providing special surveys, environmental studies and submissions required for
approvals of governmental authorities or others having jurisdiction over the Project.
3.4.4 Providing services relative to future facilities, systems and equipment.
3.4.5 Providing services to investigate existing conditions or facilities or to make measured
drawings thereof.
3.4.6 Providing services to verify the accuracy of drawings or other information furnished by
the Owner.
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3.4.7 Providing coordination oC constriction performed by separate contractors or by the
Owner's own forces and coordination of services required in connection with
constriction performed and equipment supplied by the Owner.
3.4.8 Providing services In connection xvith the work of a construction manager or separate
consultants retained by the Owner.
3.4.9 Providing detailed quantity surveys or inventories of material,equipment and labor.
3.4.10 Making investigations, inventories of materials or equipment, or valuations and
detailed appraisals of existing facilities.
3.4.11 Providing assistance in the. utilization of equipment or systems such as testing,
adjusting and balancing, preparation of operation and maintenance manuals,training
personnel for operation and maintenance and consultation during operation.
3.4.12 Providing services other than as provided in Section 2.6.4, after issuance to the Owner
of the final Certificate for Pavment.
3.4.
13 Providing services of consultants for other than engineering, structural, mechanical and
electrical engineering portions of the Project provided as a part of Basic Services.
3.4.14 Providing in%- other services not otherwise included in this Agreement or not
customarily furnished in accordance with generally accepted engineering practice.
3.4.15 Gcotcchnical Engineering.
3.4.16 Surveying.
A. Engineering and topographic surveys
B. Right-of-wiy acquisition surveyS
C. Construction phase surveying
3.4.17 Aerial photograph.
3.4.18 Hydraulic and hydrologic modeling and analysis.
3.4.19 Traffic control during construction planning and design.
3.4.20 Storm water pollution prevention plans.
3.4.21 Wetland determination\Mitigation.
3.4.22 Preparation of environmental assessment and impact statements and other assistance
to the Owner in connection with public meetings or hearings.
3.4.23 Preparation of two (2) Design Exceptions or Design Waiver documents.
3.4.24 Assist Owner with tNwo (2)public Meetings.
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3.4.25 Furnishing copies of reports or construction documents to the Owner in number
exceeding that Stipulated in the agreement for services.
3.4.26 Providing services beyond scheduled completion dates, particularly with regard to
Constriction Phase Services (warranty period).
3.4.27 Assist Owner in preparation of detailed applications and supporting documentations
for permits or government grants.
3.4.28 Assistance to the Owner as an expert witness in litigation in connection with the project
or in hearings before approving and regulatory agencies.
3.429 Redesign to reflect project scope changes requested by the Owner; required to address
changed conditions or change in direction previously approved by Owner, mandated
by changing governmental laws, or necessitated by the Owner's acceptance of
Substitutions proposed by the construction.
3.4.30 Mill, shop or laboratory inspections of the materials and equipment.
3.4.31 Providing services during constriction by a resident project representative, and by
supporting staff as required, to provide more assurance that the construction is
accomplished in general conformance to the design drawings, specifications, and other
contract doCUlllentS.
3.4.32 Quality Control Inspection and testing of materials used in the construction of the
project.
3.4.33 Preparation and delivery-'As-Built"drawings upon construction completion.
ARTICLE 4
0\A'NER'S RESPONSIBILITIES
4.1 The Owner shall consult with the Engineer regarding requirements for the Project,including(1)
the Owner's objectives, (2) schedule and design constraints and criteria, including space
requirements and relationships, flexibility, expendability, special equipment,systems and site
requirements, as more specifically described in Paragraph 2.2.1.
4.2 The Owner shall establish and update an overall budget for the Project, including the
Constriction Cost, the Owner's other costs and contingencies related to all of these costs.
4.3 The Owner Shall designate a rcprescntativc authorized to act on the Owner's behalf with respect
to the Project. The Owner or such authorized representative shall render decisions in a timely
mariner pertaining to documents Submitted by the Engineer in order to avoid unreasonable delay
in the orderly and sequential progress of the Engineer's services.
4.4 The Ow11er Shall fllllllSh SLQI'cyS describing physical characteristics, legal limitations and utility
locations for the Site of the Project, and a written legal description of the site. The surveys and
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legal information shall include,as applicable, grades and lines of streets, alleys,pavements and
adjoining property; adjacent drainage; rights-of-way, flood plains restrictions, casements,
encroachments, zoning, deed restrictions, boundaries and contours of the site; locations,
dimensions and necessary data pertaining to existing buildings, other improvements; and
information concerning available public Lltlllty services and lines, both public and private, above
and below grade, including inverts and depths.
4.5 The Owner shall fiunish the services of geotechnical engineers when such services are requested
by the Engineer and agreed to by the Owner. Such services may include but are not limited to
test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of
hazardous materials and hazardous materials storage, ground corrosion and resistivity tests,
including necessary,operations for anticipating subsoil conditions,with reports and appropriate
professional recommendations.
4.6 The Ow»cr shall furnish structural, mechanical,chemical, air and water pollution tests,tests of
hazardous materials, and other laboratory and environmental tests, inspections and reports
required by law or the Contract Documents.
4.7 The Owner shall furnish all legal, accounting and insurance counseling services as may be
necessary at any time for the Project, including auditing services the Owner may require to
verify the Contractor's Applications for Payment or to ascertain how or for what purposes the
Contractor has used the money paid by or on behalf of the Owner.
4.8 The services,nlomlatlon,surveys and reports required by Paragraphs 4.5 through 4.7 shall be
fuurnished at the Owner's expense, and the Engineer shall be entitled to rely upon the accuracy
and completeness thereof in the absence of any negligence on the part of the Engineer.
4.9 The O11ner shall give prompt written notice to the Engineer if the Owner becomes aware of any
fault or defect in the Project or nonconformance with the Contract Documents.
4.10 Engineer shall propose language for certificates or certifications to be requested of the Engineer
or Engineer's consultants and shall submit such to the Owner for review and approval at least
fourtcen(14)days prior to eNecution. The Owner agrees not to request certifications that would
require knowledge or services beyond the scope of this Agreement.
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The COnstruCtlon Cost shall be the total cost or estimated cost to the Owner of all
elements of the Project designed or specified by the Engineer.
5.1.2 The Construction Cost shall include the cost at current market rates of labor and
materials furnished by the Owner and equipment designed, specified, selected or
specially provided for by the Engineer plus a reasonable allowance for the Contractor's
overhead and profit. In addition, a reasonable allowance for contingencies shall be
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included for market conditions at the time of bidding and for changes in the Work
during constriction.
5.1.3 Constriction Cost does not include the compensation of the Engineer and Engineer's
consultants,the costs of the land, rights-of-way, financing or other costs which are the
responsibility of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Oxyuer's Project budget,preliminary estimates of Construction Cost
and detailed estimates of Construction Cost prepared by the Engineer represent the
Engineer's best judgment as a design professional familiar with the construction
industry. It is recognized,however,that neither the Engineer nor the Owner has control
over the cost of labor, materials or equipment, over the Contractor's methods of
determining bid prices, or over competitive bidding or market conditions.
Accordingly, the Engineer cannot and does not warrant or represent that bids will not
vary from the Owner's Project budget or from any estimate of Construction Cost or
evaluation prepared or agreed to by the Engineer.
5.2.2 No fixed limit of Construction Cost shall be established as a condition of this
Agreement by the furnishing, proposal or establishment of a Project budget, unless
such fixed limit has been agreed upon In writing and signed by the parties thereto. If
such a fixed limit has been established, the Engineer shall be permitted to include
contingencies for design. bidding and price escalation, to determine what materials,
equipment, component systems and types of construction arc to be included in the
Contract DOCL1nlciltS, to make reasonable adjustments in the scope of the Project and
to include in the Contract Documents alternate bids to adjust the Construction Cost to
the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in
the Contract Sum occurring after execution of the Contract for Construction.
5.2.3 If the Bidding Phase has not commenced«ithin 90 days after the Engineer submits the
Construction Documents to the Owner, any Project budget or fixed limit of
Constriction Cost shall be adjusted to reflect changes in the general level of prices in
the construction industry between the date of submission of the Construction
Documents to the Owner and the date on which proposals are sought.
ARTICLE 6
USE OF ENGINEER'S DRAWINGS,
SPECIFICATIONS AND OTHER DOCUMENTS
6.1 The Dr-,mings,Specifications and other documents prepared by the Engineer for this Project are
instruments of the Engineer's service for use solely with respect to this Project and, unless
otherwise provided,the Engineer shall be deemed lie author of these documents and shall retain
all co►runon law,statuton and other reserved rights, including the copyTight. The Owner shall
be permitted to retain copies, including reproducible copies, of the Engineer's Drawings,
Specifications and other documents for information and reference in connection with the
Owner's use and occupancy of the Project. The Engineer's Drawings, Specifications or other
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documents shall not be used by the Owner or others on other projects for additions to this
Project or for completion of this Project by others, unless this Agreement is terminated because
Engineer is in default of this Av�rcenlcnt, at which time the documents become the property of
the City of Bcaunnont.
6.2 Submission or distribution of documents to meet official regulatory requirements or for similar
purposes in connection with the Project is not to be construed as publication in derogation of
the Engineer's reserved rights.
ARTICLE 7
TERMINATION, SUSPENSION OR ABANDONMENT
7.1 Engineer may terminate this Agreement upon not less than thirty days Nvritten notice should the
Owner fail substantially to perform in accordance with the terms of this Agreement through no
fault of the Engineer. Owner may terminate this Agreement or any phase thereof upon thirty
(30) days prior\\•ripen notice to the Engineer with the understanding that immediately upon
receipt of such notice, all work and labor being performed under the Agreement shall cease
ulunediatcly. Before the end of the thirty(30) day period, Engineer shall invoice the 0\\ncr for
all \work it performed prior to the receipt of such notice. No amount shall be due for lost or
anticipated profits. All plans, field surycys, and other data related to the Project shall become
property of the 0\\ller upon termination of the Agreement and paragraph 6.1 shall not apply and
they shall be promptly dcli\•cl'ed to the O\\llcl- ill a i-casollably orga1117_ed forill. Should Owner
subsequently contract\villl a lle\w engineer for continuation of services on the Project, Engincer
shall cooperate in providing irilormatlon.
7.2 If lie Project is suspended by the Owner for more than 30 consecutive days, the Engineer shall
be compensated for services performed prior to notice of such suspension. When the Project
is resumed, the Engineer's compensation shall be equitably adjusted to provide for expenses
incurred in the interruption and resumption of the Engineer's services.
7.3 This Agreement may be terminated by the Owner upon not less than seven days \\ritten notice
to the Engineer in the event that the Project is permanently abandoned. If the Project is
abandoned by the Owner for more than 90 consecutive days, the Engineer or the Owner may
terminate this Agreement by gi\ing\\-ritlen notice.
7.4 Failure of the Owner to make payments to the Engineer in accordance with this Agreement shall
be considered substantial nonperformance and cause for termination.
7.5 If the Owner fails to make paNnlcnt to Engineer within thirty(30) days of receipt of a statement
for services properly performed, the Engineer may,upon seven days\written notice to the Owner,
suspend performance of scrviccs under this Agreement. Unless Engineer receives payment in
full within seven (7) days of the date of the notice, the suspension shall take effect without
further notice, in the event of a suspension of services under this section, the Engineer shall
have no liability to the 0\vner for delay or damage caused the Owner because of such
suspension of scrviccs.
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7.6 In the event of termination not the fault of the Engineer, the Engineer shall be compensated for
services properly performed prior to termination.
ARTICLE 8
OTHER PROVISIONS
8.1 U.S. Department of Transportation Requirements
8.1.1 The Engineer shall permit lie authorized representatives of City,the Texas Department
of Transportation,the U.S. Department of Transportation, and the Comptroller General
of the United States to inspect and audit all data records of the Engineer relating to
Engineer's performance under the Contract until the expiration of three (3)years after
final payment and resolution of audit under this Contract. The Engineer shall transmit
these data to the City upon request.
The Engineer f i ther agrees to include in all subcontracts hereunder a provision to the
effect that the subcontractor agrees that the City, the Texas Department of
Transportation,the U.S. Department of Transportation, and the Comptroller General
of the United States or any of their duly authorized representatives shall, until the
expiration of three (3) years alter final payment and resolution of audit under the
subcontract, have access to and the right to examine any directly pertinent books,
documents, papers_ and records of such subcontractor, involving transactions related
to the subcontractor. The subcontractor shall transmit all data records to the City upon
request. The term"subcontract"as used in this clause excludes (1)purchase orders not
exceeding$10,000 and (2) subcontracts or purchase orders for public utility services
It rates established for uniform applicability to the general public.
The Engineer shall be responsible for any funds determined to be ineligible for
reimbursement tinder this Contract, and shall reimburse the City the amount of any
such funds previously provided to it by the City.
8.12 The City, the Texas Department of Transportation, the U.S. Department of
Transportation, and any authorized representative thereof, have the right at all
reasonable times to inspect or otherwise evaluate the work performed or being
performed hereunder and the premises in which it is being performed.
If any inspection or evaluation is made on the premises of the Engineer or its
subcontractor, the Engineer shall provide and require its subcontractor to provide all
reasonable facilities and assistance for the safety and convenience of the inspectors in
the performance of their duties. All inspections and evaluations shall be performed in
such a manner as Will not unduly delay the work.
8.1.3 No member of or delegate to the Congress of the United States shall be admitted to any
share or part of this Contract or to any benefit arising therefrom.
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8.1.4 No member, officer, or employee of the public body or of a local public body during
their tenure or for one year thereafter shall have any interest,direct or indirect, in this
Contract or the proceeds thereof.
8.1.E Tile Engineer warrants that it has not employed or retained any company or person,
other than a bona fide employee working for it, to solicit or secure this contract, and
that it has not paid or agreed to pay any company or person, other than a bona fide
elllployee, any fee, commission, percentage, brokerage fee, gift, or any other
consideration contingent upon or resulting from the award or making of this contract.
If the Engineer breaches or violates this warranty, tile City shall have the right to annul
this contract Without liability or, in its discretion, to deduct from the contract price or
consideration,or otherwise recover the full amount of such fee,commission, brokerage
fee,gift, or contingent fee.
8.1.6 Any person doing business with or who reasonably speaking may do business with the
City, the Texas Department of Transportation, or the U.S. Department of
Transportation under this contract may not make any offer of benefits,gifts or favors
to employees of the City, the Texas Department of Transportation, or the U.S.
Department of Transportation. Failure on the part of the Engineer to adhere to this
policy may result in termination of this contract.
8.1.7 The Engineer is prohibited from making any award or permitting any award at any tier
to any party which is debarred or suspended or otherwise excluded from or ineligible
for participation in federal assistance programs under Executive Order 12549,
Debarment and Suspension. The Engineer and its subcontractors shall comply with the
special provision "Certification Requirements for Recipients of Grants and
Cooperative Agreements Regarding Debarments and Suspensions,"which is included
as Appendix A of this agreement.
8.1.8 PUr-Sllallt to Section 319 of Public Law 101-131, which generally prohibits recipients
of federal funds from using those monies for lobbying purposes, the Engineer shall
comply with the special provision "Restrictions on Lobbying,"which is included as
Appendix B of this agreement.
8.1.9 The Engineer agrees to comply with all applicable standards, orders or requirements
issued udder Section 306 of the Clean Air Act(42 USC 197 [11]); Section 508 of the
Clean Water Act (33 USC 1368); Executive Order 11738 and Environmental
Protection Agency regulations (40 CFR, Part 15). The Engineer further agrees to
report violations to the City.
8.1.10 The Engineer agrees that no othci-wise qualified disabled person shall,solely by reason
of their disability, be excluded from participation in, be denied the benefits of, or
otherwise be subject to discrimination under the project. The Engineer shall insure that
all fixed facility constriction or alteration and all new equipment included in the project
comply with applicable regulations regarding Nondiscrimination on the Basis of
Disability in Programs and Activities Receiving or Benefiting from Federal Financial
Assistance, set forth in 49 CFR, Part 27 and any amendments thereto.
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8.1.11 As required by 41 CFR, Part 60, the Engineer shall not discriminate against any
employee or applicant for employment because of race, religion,color, sex, or national
origin. The Engineer shall talc affirmative actions to ensure that applicants are
employed,and that employees are treated,during their employment,without regard to
their race,religion,color,sex,or national origin. Such actions shall include, but not be
limited to, the following: employment, upgrading,demotion,or transfer; recruitment
or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The Engineer
further agrees to insert a similar provision in all subcontracts,except subcontracts for
standard commercial supplies or ra%v materials.
8.1.12 It is the policy of the U.S. Department of Transportation that Disadvantaged Business
Enterprises(DBE)as defined in 49 CFR Part 23, Subpart A, shall have the maximum
opportunity to participate in the performance of contracts financed in whole or part
with federal funds under this agreement. Consequently the DBE requirements of 49
CFR Part 23, exclusive of Subpart D, apply to this agreement. The City and its
subcontractors agree to ensure that Disadvantaged Business Enterprises as defined in
49 CFR Part 23, Subpart A, have the maximum opportunity to participate in the
performance of contracts and subcontracts financed in whole or in part with federal
funds provided under this agreement. In this regard, the City and its subcontractors
shall take all necessary and reasonable steps in accordance with 49 CFR Part 23,
exclusive of Subpart D. to ensure that Disadvantage Business Enterprises have the
maximum opportunity to compete for and perform contracts. The City and its
subcontractors shall not discriminate on the basis of race. creed,color,national origin,
or sex in the award and performance of contracts funded in whole or in part with federal
funds. These requirements shall be physically included in any subcontract entered into
by the Engineer. Failure to carry out the requirements set forth shall constitute a breach
of contract and may result In termination of the Contract by the City or other such
remedy as the City,deems appropriate.
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8.1.13 During the performance of this Contract. the Engineer, for itself, its assignees, and
successors agrees to comply with the Regulations relative to nondiscrimination in
federally assisted programs of the Department of Transportation, Title 49, Code of
Federal Regulations, Part 21 and Title 23, Federal Regulations, Part 710.405 (b), as
they may be amended from time to time (hereinafter referred to as the Regulations),
which are herein incorporated by reference and made a part of this Contract.
Compliance with these regulations shall be accomplished in the manner more
particularly set out hereinafter in Appendix C of this Contract.
8.1.14 The City must approve all substitutions of subcontracts and will determine if the
disadvantaged business enterprise percentage goal will be decreased by substituting a
majority contractor for a disadvantaged business contractor.
8.1.15 Should disputes arise concerning the Scope of Services or additional work to be
performed under this Contract, the Engineer and the City shall negotiate in good faith
toward resolving such disputes. The City shall be responsible to its funding agencies
for the settlement of all contractual and administrative issues arising out of
procurement entered into in support of the Unified Planning Work Program. Violation
or breach of contract terms b} the Engineer may be grounds for termination, and should
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said disputes be irreconcilable, the City sliall terminate the agreement by default. Any
increased costs arising from the termination shall be paid by the Engineer.
8.1.16 The Engineer shall comply with procurement standards for federal grant programs
contained in 49 CFR 18, "Uniform Administrative Requirements and Cooperative
Agreements with State and Local Governments,"as may be revised or superseded.
8.l.17 Except as otheii ise provided in the terms and conditions of the Contract, the City is
free to copyright any books, publications, or other copyrightable materials developed
in the course of or under a federal agreement. Except as otherwise provided in the
terms and conditions of the Contract,the federal grantor agency shall reserve a royalty-
free nonexclusive and irrevocable right to produce, publish, or otherwise use, and to
authorize others to use, the wort:for government purposes.
8.1.18 The prime contractor is required to perform all work except specialized services or
Other tasks specifically exempted in the contract,except that governmental recipients
of 23 U.S.C. 104 (f) or 402 funds may subcontract as necessary to accomplish
approved work program activities. All subcontracts exceeding$10,000 in cost shall
contain all required provisions of the prime contract.
8.2 The City and Texas Department of Transportation have entered into a Surface Transportation
Program -- Transportation Enhancement Agreement in conjunction with this project. This
agreement is incorporated as Appendix D to the agreement with the Engineer. Where
applicable,the Engineer shall comply with the terms and conditions of the agreement regarding
the requirements of the City and/or City"s consultant.
8.3 This Agreement shall be governed by the laws of the State of Texas.
8.4 The O\lmcr and Engineer,respectively, bind themselves, their partners,successors, assigns and
legal representatives to the other party to this Agreement and to the partners, successors, assigns
and legal representatiycs of such other parry with respect to all covenants of this Agreement.
Neither ONNmer nor Engineer shall assign this Agreement without the Witten consent of the
other.
8.5 This Agreement represents the entire and integrated agreement between the O\\ner and Engineer
and supersedes all prior negotiations,representations or agreements, either written or oral. Tills
Agreement may be amended only by written instrument signed by both Owner and Engineer.
8.6 Nothing contained in this Agreement shall create a contractual relationship with or a cause of
action in favor of a third party against either the Owner or Engineer.
8.7 Unless otherwise provided in this Agreement,the Engineer and Engineer's consultants shall have
no responsibility for the discovery, presence,handling,removal or disposal of or exposure of
persons to hazardous materials in any form at the Project site, including but not limited to
asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances,
provided, however, Engineer shall have the responsibility to and shall report to the O\%mer the
location of any hazardous material that an engineer of skill and expertise should have noticed.
8.8 Upon receipt of prior written approval of Owner, the Engineer shall have the right to include
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representations of the design of the Project, including photographs of the exterior and interior,
among the Engineer's promotional and professional materials. The Engineer's materials shall
not include the Owner's confidential or proprietary information if the Owner has previously
advised the Engineer in writing of the specific information considered by the Owner to be
confidential or proprietary. The Owner shall provide professional credit for the Engineer on the
construction sign and in the promotional materials for the Project.
ARTICLE 9
PAYMENTS TO THE ENGINEER
9.1 DIRECT PERSONNEL EXPENSE (APPLICABLE TO ADDITIONAL SERVICES,
ARTICLE 3)
9.1.1 Direct Personnel Expense is defined as the direct salaries of the Engineer's personnel
engaged on the Project and the portion of the cost of their mandatory and customary
contributions and benefits related thereto,such as employment taxes and other statutory
employee benefits, insurance, sick leave, holidays, vacations, pensions and similar
contributions and benefits. Billing rates for additional services are in accordance with
Exhibit B.
9.2 REIMBURSABLE EXPENSES
9.2.1 Reunbursablc Expenses are in addition to compensation for Basic Services and include
expenses incurred by the Engineer and Engineer's employees and consultants in the
interest of the Project, as identified in the folloxving clauses.
9.2.1.1 Expenses in connection with authorized out-of-town travel; long-distance
communications; and fees paid for securing approval of authorities having
jurisdiction over the Project.
9.2.1.2 Expense of reproductions (except the reproduction of the sets of documents
referenced in Subparagraph 3.3.7), postage and handling of Drawings,
Specifications and other documents.
9.2.1.3 If authorized in advance by the Owner,expense of overtime work requiring
higher than regular rates.
9.2.1.4 Expense of renderings,models and mockups requested by the Owner.
9.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
9.3.1 Payments for Basic Services shall be made monthly and,where applicable,shall be in
proportion to services performed within each phase of service,on the basis set forth in
Subparagraph 10.1.2.
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9.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES
9.4.1 Payments on account of the Engineer's Additional Services and for Reimbursable
Expenses shall be made monthly upon presentation of the Engineer's statement of
services rendered or expenses incurred. Such charges shall be included as a separate
item on the Englincer's statement for Basic Services.
9.5 PAYMENTS WITHHELD
9.5.1 No deductions shall be made from the Engineer's compensation on account of penalty,
liquidated damages or other stuns withheld from payments to contractors,or on account
Of the cost of changes in the Work other than those for which the Engineer is
responsible.
9.6 ENGINEER'S ACCOUNTING RECORDS
9.6.1 Engineer shall make available to Owner or O\vncr'S authorized representative records
of Reimbursable Expenses and expenses pertaining to Additional Services and services
performed on the basis of a multiple of Direct Personnel Expense for inspection and
copying during regular business hours for three years after the date of the final
Certificate o£PaNnlent, or until any litigation related to the Project is final, whichever
date is later.
ARTICLE 10
BASIS OF COMPENSATION
The Owner shall compensate the Engineer as follows:
10.1 BASIC COMPENSATION
10.1.1 FOR BASIC SERVICES,as described in Article 2, and any other services included in
Article I I as part of Basic Services. Basic Compensation ,on a total cost not to exceed
basis, shall be as follo\\s:
10.1.2 Progress payments for Basic Services in each phase shall total the following
percentages of the total Basic Compensation payable:
• Schematic Design Phase 15%
• Design and Development Phasc 20'%o
• Construction DOCU111C11tS PhaSC 40'%,
• Bidding Phase 05%
• Construction Phase 20'%,
• Total Basic Compensation 100%
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10.2 COMPENSATION FOR ADDITIONAL SERVICES
10.2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described
in Paragraph 3.2,compensation shall be computed as follows:
10.2.2 FOR ADDITIONAL SERVICES OF THE Engineer, as described in Articles 3 and
11 but excluding services of consultants, compensation shall be computed as follows:
10.2.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional
structural,mechanical,electrical,and civil engineering, surveying and landscape design
services and those provided under Subparagraph 3.4.14 or identified in Article 3 as part
of Additional Services,a multiple of 1.15 times the amounts billed to the Engineer for
such services.
10.3 REIMBURSABLE EXPENSES
10.3.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 9.2, and any other
items included in Article 3 as Reimbursable Expenses, a multiple of 1.15 times the
expenses incurred by the Engineer, the Engineer's employees and consultants in the
interest of the Project.
10.4 ADDITIONAL PROVISIONS
10.4.1 Pay rnents arc due and payable thirty(30)days from lie date of receipt of the Engineer's
invoice. Amounts for sc►ti ices properly performed which remain unpaid sixty (60)days
after the invoice date shall bear interest at the rate of one (1%) percent per month. The
City shall notify Engineer within 5 days of recept of invoice,if statement is incorrect.
ARTICLE 11
OTHER CONDITIONS OR SERVICES
11.1 Engineer shall maintain,at no expense to Owner, a professional liability(errors and omissions)
insurance policy placed with a company rated at least B+/X by Best's Key Rating Guide,
authorized to do business in Texas,in an amount not less than one million dollars ($1,000,000).
Such policy shall require the giving of written notice to Owner at least thirty days prior to
cancellation or non-renewal of any policies. In addition, Engineer shall furnish Owner with
copies of said policies or certificates as indicated in Attachment "A."
11.2 Engineer agrees to uldern iffy,hold harmless,and defend the City, at Engineer's cost, its officers,
agents,and employees from and against any and all claims or suits for injuries,damages, Ioss,
or liability of whatever kind or character, arising out of or in connection with the performance
by the Engineer of those services contemplated by this Agreement,based upon allegations of
negligent acts of Engineer, its officers, agents,employees, and expressly including allegations
of negligence, acts or omissions of the City of Beaumont, its agents, officers or employees,
when such allegations of negligence to the City arise from the actions and professional work
undertaken by Engineer hereunder. However, Engineer shall not indemnify or hold harmless
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Owner, its officers, managers, directors, employees and agents from any claims, demands or
causes of action caused by sole negligence or misconduct by Owner.
This Agreement entered into as of the day and year first written above.
CITY OF BEAUMONT, TEXAS,
OWNER Engineer
BY: BY:
Ray A. Rilcy, City Managcr
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