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HomeMy WebLinkAboutRES 98-348 RESOLUTION NO. 9 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 Fittz and Shipman, Inc. to provide engineering services for the construction of improvements to the Beaumont Yacht Club. The agreement 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 , 1998 between the City of Beaumont, Texas, hereinafter referred to as "Owner," and Fittz & Shipman, Inc., hereinafter referred to as "Engineer" for the following Project: Development and Construction of Improvements to the Beaumont Yacht Club, 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 DEFMTION 2.1.1 The Engineer's Basic Services consist of those described in Paragraphs 2.2 through 2.6 and any other services identified in Article 11 as part of Basic - 1 - EXHIBIT "A" Services, and include without limitation normal structural, mechanical and electrical engineering services and any other engineering services necessary to produce a set of Construction Documents, 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 Owner'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 5.2.1. 2.2.3 The Engineer shall review with 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 on 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 commencement 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 documents 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 fulfill the purposes of the Project. 2.3.2 The Engineer shall advise the Owner of any adjustments to the preliminary -2- estimate of Construction Cost in a further Detailed Statement as described in Paragraph 2.2.5. 2.3.3 The Engineer shall provide the owner with an analysis of the estimated operating costs of the completed project. 2.3.4 The Engineer shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys,pavements and adjoining property; adjacent drainage; rights-of-way, flood plains restrictions, easements, 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 utility services and lines,both public and private, above and below grade, including inverts and depths;river elevations to include low,high and mean water levels. 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 construction 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 connection with the Owner's responsibility for filing documents and submissions 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. -3- 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, at its sole cost and expense, will revise the Construction Documents in a continuous fashion so that they 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. 2.6 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Engineer's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the completion of the one(1)year warranty period. 2.6.2 The Engineer shall provide administration of the Contract for Construction as set forth below,unless otherwise provided in this Agreement or approved by the City. 2.6.3 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. 2.6.4 The Engineer shall be a representative of and shall advise and consult with the Owner(1)during construction, and (2) at the Owner's direction from time to time during the correction,or warranty period described in the Contract for 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. '2.6.5 The Engineer shall visit the construction site at least two times a week, regardless of whether construction is in progress, to become familiar with the progress and quality of the Work completed and to determine if the Work is being performed in a manner indicating that the Work,when completed,will be in accordance with the Contract Documents. 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 work of Contractor or any subcontractors. The Engineer represents that he will follow high professional standards as described in 1.1.2 herein in performing all Services under this Agreement. The Engineer shall promptly correct any defective designs or specifications furnished by the Engineer at no -4- cost to the Owner. The Owner's approval, acceptance, use of or payment for all or any part of the Engineer's services hereunder or of the Project itself shall in no way alter the Engineer's obligations or the Owner's rights hereunder. 2.6.6 The Engineer shall not have control over or charge of and shall not be responsible for 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 cant'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 performing portions of the Work. 2.6.7 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. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Engineer. Communications by and with the Engineer's consultants shall be through the Engineer. 2.6.9 Based on the 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. 2.6.10 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 further 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. 2.6.11 The Engineer shall have the authority to reject Work which does not conform to the Contract Documents and shall consult with Owner. Whenever the Engineer considers it necessary or advisable for implementation of the intent of the Contract Documents, the Engineer will have authority to recommend 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 -5- 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. 2.6.12 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 cause no 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 quantities 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 or equipment will meet the performance criteria required by the Contract Documents. 2.6.13 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 3.3.3, 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 not inconsistent with the intent of the Contract Documents. 2.6.14 On behalf of the Owner, the Engineer shall conduct 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. 2.6.15 The Engineer shall interpret and provide recommendations on matters -6- 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. 2.6.16 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. 2.6.17 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. 2.6.18 The Engineer(1) shall render services under the Agreement in accordance with the 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. 2.6.19 The Engineer shall provide the Owner with one(1) set of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase. Drawings shall indicate significant changes in the Work made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Engineer. ARTICLE 3 ` ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 11, 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 writing 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 commencing such services. If the Owner deems that such services described under Paragraph 3.3 are not required, the Owner shall give -7- prompt written notice to the Engineer. If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Engineer shall have no obligation to provide those services. 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 BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subparagraph 2.6.5 is required, the Engineer shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Engineer, and the Engineer shall be compensated therefore as agreed by the Owner and Engineer. 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: 13.1.2 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, complexity, the Owner's schedule, or the method of bidding and contracting for construction, 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 or other cause during construction, and furnishing services required in connection with the replacement of such Work. 3.3.5 Providing services made necessary by the default of the Contractor, or by -8- 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. 3.4 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, if required. 3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project not addressed in Basic Services. 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. 3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3.4.8 Providing services in connection with 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 Payment and expiration of the Warranty period of the Contract for Construction. -9- 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 any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted engineering practice. ARTICLE 4 OWNER'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 Construction Cost, the Owner's other costs and contingencies related to all of these costs. 4.3 The Owner shall designate a representative 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 manner 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 Owner shall furnish 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. 4.5 The Owner 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. 4.6 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. - 10- 4.7 The services, information, surveys and reports required by Paragraphs 4.5 through 4.7 shall be furnished 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. 4.8 The Owner 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. 4.9 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 fourteen(14) days prior to execution. 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 Construction 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 fiunished 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 included for market conditions at the time of bidding and for changes in the Work during construction. 5.1.3 Construction 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 Owner'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 - il - 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 are to be included in the Contract Documents,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 within 90 days after the Engineer submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction 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 Drawings, 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 the author of these documents and shall retain all common law, statutory and other reserved rights, ` including the copyright. 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 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 Agreement, at which time the documents become the property of the City of Beaumont. 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. - 12- ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 Engineer may terminate this Agreement upon not less than thirty days written 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 written 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 immediately. Before the end of the thirty (30) day period,Engineer shall invoice the Owner 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 surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and paragraph 6.1 shall not apply and they shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with a new engineer for continuation of services on the Project,Engineer shall cooperate in providing information. 7.2 If the 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 written 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 giving written 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 payment 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 services 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 Owner for delay or damage caused the Owner because of such suspension of services. 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. - 13- ARTICLE 8 OTHER PROVISIONS 8.1 The Owner, 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. 8.2 This Agreement shall be governed by the laws of the State of Texas. 8.3 The Owner 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 representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Engineer shall assign this Agreement without the written consent of the other. 8.4 This Agreement represents the entire and integrated agreement between the Owner and Engineer and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Engineer. 8.5 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. 8.6 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 Owner the location of any hazardous material that an engineer of skill and expertise should have noticed. 8.7 Upon receipt of prior written approval of Owner, the Engineer shall have the right to include 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. - 14- ARTICLE 9 PAYMENTS TO THE ENGINEER 9.1 DIRECT PERSONNEL EXPENSE 9.1.1 Direct Personnel Expense is defined as the direct salaries of the Engineers 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. 9.2 REIMBURSABLE EXPENSES 9.2.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Engineer and Engineer's employees and consultants in the interest of the Project, as identified in the following clauses. 9.2.1.1 Expenses in connection with authorized out-of-town travel; authorized long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 9.2.1.2 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 9.2.1.3 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 10.2.2. 9.3.2 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subparagraph 10.2.2 based on (1) the lowest bona fide bid or(2)if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. - 15- 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 Engineer'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 sums 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 Owner'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 of Payment,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 11 as part of Basic Services, Basic Compensation,on a total cost not to exceed basis, shall be as follows: eight percent (8%) of construction contract cost, not to exceed $63,000.00. - 16- 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 Phase 20% • Construction Documents Phase 30% • Bidding Phase 10% • Construction Phase 25% • Total Basic Compensation 100% 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,other than(1)Additional Project Representation, as described in Paragraph 3.2, and (2) services included in Article 11 as part of Additional Services,but excluding services of consultants,compensation shall be computed as provided in Attachment "A." 10.2.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical, electrical, and civil engineering and landscape design services and those provided under Subparagraph 3.4.14 or identified in Article 11 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 11 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 Payments are due and payable thirty (30) days from the date of receipt of the Engineer's invoice. Amounts for services properly performed which remain unpaid sixty(60)days after the invoice date shall bear interest at the rate of one (I%) percent per month. - 17- 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"C." 11.2 Engineer agrees to indemnify,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, loss, 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. This Agreement entered into as of the day and year first written above. CITY OF BEAUMONT, TEXAS, FITTZ & SHIPMAN, INC. OWNER ENGINEER BY: BY: Ray A. Riley, City Manager - 18- ATTACIRIMT "A" F ttz & Shipman, Inc. - Consulting Engineers and Land Surveyors SCHEDULE OF REIMBURSABLE RATES ENGINEERING AND SURVEYING SERVICES The charges for engineering and surveying services are invoiced on an hourly basis by classification of personnel in accordance with the following schedule: Classification Rate(donars per hour t Overtime Rate(dollars Per hourl Engineering Principal $115.00 same Dir.of Engineering $82.00 same Engineer IV S67.00 same Engineer ill $55,00 same Engineer 11 $45.00 same Engineer 1 $35,00 same Drafting CAD Operator IV $46.50 $59.50 CAD Operator 111 $37.50 548.00 CAD Operator 11 $3250 $41.50 CAD Operator 1 $25.00 $32.50 Surveying Registered Public Surveyor $65.00 same Survey Technician $44.00 $57.00 Survey Party Chief $37.50 $49.00 Instrument Man $29.00 $37.50 Rod Man $20.00 $26.00 Two-Man Survey Crew $66.50 $86.50 Three-Man Survey Crew $86.50 $112.50 Field Inspection Field Inspector $W.00 same Associates Associate $125.00 same Clerical Clerical $2250 $29.50 Expert Testimony Investigation/preparation $125.00 same Court Testimony/DePoskion $175.00 same Equipment Services Equipment Charges Rate Electronic Total Station with Data Collector $75.00 per day Electronic Total Station $50.00 per day Four-Wheel Drive Vehicle $75.00 per day Small boat with Motor $50.00 per day Concrete Monuments $100.00 each Hourly rates are based on eight-hour worldng days which include travel time between our office and the site. Rates include standard equipment,fringe benefits,insurance,overhead and profit. REIMBURSABLE EXPENSES For authorized sub-contracts and reimbursable expenses(printing,supplies, long distance telephone calls, etc.), the charge will be cost plus fifteen percent(15%)service charge. Mileage in company vehicles will be charged at thirty-five cents($0.35) per mile. MasterslWordW2tes"Sd January t 1998 440 18th Street,Suite A • Beaumont,•Texas - 77707 • (409)832-7238 - 10 - ATTACHMENT "B" CITY OF BEAUMONT MINORITY BUSINESS UTILIZATION COMMITMENT PROFESSIONAL SERVICES The City of Beaumont has adopted a plan to assure minority involvement in City agreements for professional services. It is the goal of the City of Beaumont to award at least twenty percent(20%) of all professional services agreements (over $25,000 per agreement) to qualified local minority business enterprises each year. It is the ultimate goal of the City to have its letting of professional service agreements reflect the demographic makeup of the City. The term "minority business" means a business in which(a)at least fifty-one percent(51%) is owned by minority members or, in the case of a corporation, at least fifty-one percent ( 51%) of the stock is owned by minority members; and(b)the management and daily business operations are controlled by one or more such individuals. For the purposes of the preceding sentence, minority group members means those individuals who are citizens of the United States(or lawfully admitted permanent residents)who are Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Asian- Indian Americans,women,or handicapped individuals. The local area includes Jefferson, Orange, and Hardin Counties in Texas. Formal definitions of the foregoing may be obtained in the Minority Business Enterprise Program Policy Manual and may be reviewed in the City Clerk's office located in Room 180 in City Hall. In order to obtain our goal,the City of Beaumont will use the following priorities. 1. The City of Beaumont will take every step to use a qualified minority business for professional services when available. 2. If a minority business cannot be utilized for professional services then a majority business who subcontracts with a minority firm for a percentage of the contract will be given priority. For the purpose of improving the chance of entrepreneurship of minority persons,the City of Beaumont will allow a minority person to be employed by a non-minority and still be utilized as a minority professional service. All rights of subcontracting will be observed between such a union as long as the following regulations are observed. (a) A bona fide agreement is drawn up and signed, subcontracting a portion of the work to the MBE. (b) The percentage amount and dollar value is presented before the contract is awarded. -20- (c) The most feasible proposer agrees to provide, within six days of notification by the City that it is the most feasible proposer, a list of specific minority businesses it anticipates utilizing the purpose for which each minority business enterprise will be utilized, and the dollar amount to be expended for each minority business enterprise. The City will request information from the next feasible proposer. (d) If awarded a contract, the proposer further agrees to furnish a report Iisting minority business utilization and the dollar amount expended for each service or subcontract upon request by the City of Beaumont. (e) If it appears during the course of the project that less than the agreed MBE percentage will be expended to minority businesses, the agreement may be suspended,terminated, or the City may exercise any other remedies which it may have as a result of breach of the agreement. This provision shall not apply, however, provided the proposer can demonstrate to the City's satisfaction that; (1) the expenditure shortfall is not the fault of the proposer, or (2) the proposer will make up the shortfall during the balance of the agreement period. 3. If a minority business firm cannot be utilized and the majority proposer cannot subcontract with a minority firm, a majority firm having an Affirmative Action Plan and furnishing such plan to the City will be given next priority. 4. If the steps above do not result in any minority participation or use of a firm with an Affirmative Action Plan, the City Manager may approve the use of a majority business which will provide an Affirmative Action Plan within six months after agreement execution or provide a development plan to meet the City's goals. 5. The City will institute a program to certify minority businesses who meet the criteria of this policy. The program will verify the minority status of the proposers and subcontractor selected under the policy and will assist new minority businesses in obtaining certification. The City Manager of the City of Beaumont(and/or his designee)will be responsible for administering these policies. A list of local minority business enterprises will be maintained at the office of the City Manager and the City Clerk and shall be available to all persons desiring such information. This list shall not be considered the sole source of identification of potential minority business enterprises. Where legal or ethical considerations prohibit specific dollar amounts to be provided with proposals, proposals shall only be required to indicate the anticipated MBE percentage when the anticipated agreement amount exceeds $25,000. Should the -21 - final agreement amount exceed $25,000, all MBE requirements shall be met. -22- MINORITY BUSINESS UTILIZATION COMMITMENT L DISCRIMINATION PROHIBITED Proposer, in the execution, performance or attempted performance of this agreement shall not discriminate against any person or persons because of sex, race, religion, color, or national origin; and proposer hereby covenants and agrees that it has fully complied with the provision of the Minority Business Enterprises Policy of the City of Beaumont and that no employees or employee-applicant has been discriminated against by employees or employee- applicant has been discriminated against by Proposer. The Proposer must be an equal opportunity employer. II. MINORITY BUSINR4S ENTERPRISES The undersigned agrees to comply with priority number of the Minority Business enterprises Policy as outlined in this document. It is understood that the City of Beaumont will utilize this priority system in the evaluation of all proposals. Name of Company Date Signature Title -23 - ATTACHMENT "C" INSURANCE SECTION A. Prior to the approval of this contract by the City, CONTRACTOR shall furnish a completed Insurance Certificate to the Purchasing office. The certificate shall be completed by an agent authorized to bind the named underwriter(s) to the coverages, limits, and termination provisions shown thereon, and shall furnish and contain all required information referenced or indicated thereon. CITY SHALL HAVE NO DUTY TO PAY OR PERFORM UNDER THIS CONTRACT UNTIL SUCH CERTIFICATE IS RECEIVED BY THE CITY OF BEAUMONT'S PURCHASING DIVISION, and no officer or employee of the City shall have authority to waive this requirement. INSURANCE OVER WE REQUIRED SECTION B. CITY reserves the right to review the insurance requirements of this section during the effective period of the contract and to adjust insurance coverages and their limits when deemed necessary and prudent by CITY,based upon changes in statutory law,court decisions, or the claims history of the industry as well as the CONTRACTOR. SECTION C. Subject to CONTRACTOR'S right to maintain reasonable deductibles in such amounts as are approved by CITY,CONTRACTOR shall obtain and maintain in full force and effect for the duration of this contract, and any extension hereof, at CONTRACTOR'S sole expense, insurance coverage written by companies approved by the State of Texas and acceptable to CITY, in the following type(s) and amount(s): TYPE AMOUNT 1. Workers' Compensation and Employer's Statutory Liability NOTE: For building or construction projects, the successful Contractor shall _ meet the minimum requirements defined in the Texas Workers' Compensation Commission Rule 28 TAC §110.110 which follows this insurance attachment 2. Commercial General (public) Liability including coverage for the following: a. Premises operations Combined single limit for bodily injury and b. Independent contractors and property damage of $500,000 per C. Products/completed operations occurrence or its equivalent with an aggregate d. Personal injury limit of 51,000,000. e. Advertising injury f. Contractual liability g. Medical payments -24- h. Underground hazard* I. Explosion and collapse hazard* j. Liquor liability* k. Fire legal liability* 1. City's property in Contractor's* care, custody,or control M. Asbestos specific liability* * Not required for this contract 3. Comprehensive Automobile Liability Combined single limit for bodily injury insurance, including coverage for loading and property damage of$500,000 per and unloading hazards, for: occurrence or equivalent. a. Owned/leased vehicles b. Non-owned vehicles C. Hired vehicles ADDITIONAL POLICY ENDO S MFNTS CITY shall be entitled, upon request, and without expense, to receive copies of the policies and all endorsements thereto and may make any reasonable request for deletion, revision, or modification of particular policy terms,conditions, limitations, or exclusions(except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any of such policies). Upon such request by CITY, CONTRACTOR shall exercise reasonable efforts to accomplish such changes in policy coverages, and shall pay the cost thereof. REQUIRED PROVISIONS CONTRACTOR agrees with respect to the above required insurance, all insurance contracts and certificate(s)of insurance will contain and state, in writing, on the certificate or its attachment, the following required provisions. a. a Name,the City of Beaumont and its officers,employees,and elected representatives as additional insured(s),(as the interest of each insured may appear)to all applicable coverage; b. Provide for 15 days notice to City for cancellation,non-renewal,or material change; C. Provide for notice to City at the address shown below by registered mail; d. CONTRACTOR agrees to waive subrogation against the City of Beaumont, its officers,employees,and elected representatives for injuries,including death,property damage, or any other loss to the extent same may be covered by the proceeds of insurance. -25 - e. Provide that all provisions of this agreement concerning liability, duty, and standard of care together with the indemnification provision, shall be underwritten by contractual liability coverage sufficient to include such obligations within applicable policies. f. For coverages that are n*available with claims made policies, the required period of coverage will be determined by the following formula: Continuous coverage for the life of the contract,plus one year(to provide coverage for the warranty period) and an extended discovery period for a minimum of five years which shall begin at the end of the warranty period. NOTICES CONTRACTOR shall notify CITY in the event of any change in coverage and shall give such notices not less than 15 days prior to the change, which notice must be accompanied by a replacement CERTIFICATE OF INSURANCE. All notices shall be given to CITY at the following address: Purchasing Division City of Beaumont P.O. Box 3827 Beaumont, Texas 77704 SECTION D. Approval, disapproval, or failure to act by CITY regarding any insurance supplied by CONTRACTOR shall not relieve CONTRACTOR of full responsibility or liability for damages and accidents as set forth in the contract documents. Neither shall the bankruptcy, insolvency, or denial of liability by the insurance company exonerate CONTRACTOR from liability. -26- WORKERS COMPENSATION INSURANCE FOR BUILDING OR CONSTRUCTION PROJECTS TEXAS WORKERS' COMPENSATION COMMISSION RULE 28, §110.110 As required by the Texas Workers'Compensation Rule 28,§110.110,the Contractor shall accept the following definitions and comply with the following provisions: Workers' Compensation Insurance Coverage A. Definitions: 1. Certificate of coverage ("certificate")-A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. 2. Duration of the project-includes the time from the beginning of the work on the project until the Contractor's/person's work on the project has been completed and accepted by the City of Beaumont. 3. Persons providing services on the project("subcontractor" in §406.096) - includes all persons or entities performing all or part of the services the Contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the Contractor and regardless of whether that person has employees. This includes, without limitation, independent Contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include,without limitation,providing, hauling, or delivering equipment - - or materials,or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The Contractor shall provide coverage,based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code,Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. C. The Contractor must provide a certificate of coverage to the City of Beaumont prior to being awarded the contract. -27- D. If the coverage period shown on the Contractor's current certificate of coverage ends during the duration of the project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the City of Beaumont showing that coverage has been extended. E. The Contractor shall obtain from each person providing services on a project, and provide to the City of Beaumont: 1. A certificate of coverage,prior to that person beginning work on the project, so the City of Beaumont will have on file certificates of coverage showing coverage for all persons providing services on the project; and 2. No later than seven (7) days after receipt by the Contractor, a new certificate of coverage showing extension of coverage,if the coverage period shown on the current certificate of coverage ends during the duration of the project. F. The Contractor shall retain all required certificates of coverage for the duration of the project and for one(1)year thereafter. G. The Contractor shall notify the City of Beaumont in writing by certified mail or personal delivery, within ten (10) days after the Contractor knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project. H. The Contractor shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. I. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: 1. Provide coverage, based on proper reporting of classification codes and payroll ` amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the project; 2. Provide to the Contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project. 3. Provide the Contractor,prior to the end of the coverage period, a new certificate'of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; -28- 4. Obtain from each other person with whom it contracts, and provide to the Contractor: a. A certificate of coverage, prior to the other person beginning work on the project; and b. A new certificate of coverage showing extension of coverage,prior to the end of the coverage period,if the coverage period shown on the current certificate of coverage ends during the duration of the project; 5. Retain all required certificates of coverage on file for the duration of the project and for one(1) year thereafter; 6. Notify the City of Beaumont in writing by certified mail or personal delivery,within ten (10) days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and 7. Contractually require each person with whom it contracts, to perform as required by paragraphs(1)-(7),with the certificates of coverage to be provided to the person for whom they are providing services. J. By signing this contract or providing or causing to be provided a certificate of coverage, the Contractor is representing to the City of Beaumont that all employees of the Contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project, that the coverage will be based on proper reporting of classification codes and payroll amounts,and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties,criminal penalties, civil penalties,or other civil actions. K. The Contractor's failure to comply with any of these provisions is a breach of contract by the Contractor which entitles the City of Beaumont to declare the contract void if the Contractor does not remedy the breach within ten (10) days after receipt of notice of breach from the City of Beaumont. As defined by the Texas Labor Code, Chapter 269, Section 406.096(e),building or construction is defined as: 1. Erecting or preparing to erect a structure, including a building, bridge, roadway, public utility facility, or related appurtenance; 2. Remodeling, extending, repairing, or demolishing a structure; or -29- 3. Otherwise improving real property or an appurtenance to real property through similar activities. The employment of a maintenance employee who is not engaging in building or construction as the employer's primary business does not constitute engaging in building or construction. -30- CITY OF BEAUMONT INSURANCE REQUIREMENT AFFIDAVIT To be Completed By Appropriate Insurance Agent and submitted WITH proposal I, the undersigned Agent/Broker, certify that the insurance requirements contained in this bid document have been reviewed by me with the below identified Contractor. If the below identified Contractor is awarded this contract by the City of Beaumont, I will be able to, within ten(10)days after being notified of such award, famish a valid insurance certificate to the City meeting all of the requirements defined in this bid. Agent (Signature) Agent(Print) Name of Agency/Broker: Address of Agent/Broker: City/State/Zip: Agent/Broker Telephone #: _l CONTRACTOR'S NAME: (Print or Type) NOTE TO AGENT/BROKER If this time requirement is not met, the City has the right to invalidate the bid award and award [the contract to the next lowest bidder meeting specifications. Should an awarded bid be invalidated the .Contractor may be liable for breach of contract. If you have any questions concerning these requirements,please contact the Purchasing Manager for the City of Beaumont at 409 880-3720. -31 -