1992-096-RES WHEREAS, the City of Paris, has need for professional services and Hayter Engineering, Inc., 4445 S. E.
,
.
.
-l
RESOLUTION NO.
92-096
WHEREAS, the City of Paris, has need for professional
services and Hayter Engineering, Inc., 4445 S. E. Loop 286
has made a proposal for engineering services for a water
facilities improvement project in connection with a new raw
water transmission main from Pat Mayse Reservoir to the water
treatment plant; and,
WHEREAS, it is deemed to be in
City of Paris that such proposal
professional services contract in
attached hereto and made a part
approved; NOW, THEREFORE,
the best interest of the
be accepted and that a
the form of Exhibit A
hereof which should be
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
PARIS, that the proposal of Hayter Engineer ing, Inc. for
professional services described in Exhibit A attached hereto,
be, and the same is hereby accepted.
BE IT FURTHER RESOLVED, That the Mayor of the City of
Paris, George Fisher, be, and he is hereby authorized and
directed on behalf of the City of Paris to execute the
Professional Service Contract attached hereto as Exhibit A.
Passed and adopted this 9th day of November, 1992.
~~s~r
ATTEST:
Mattie Cunning
APPROVED AS TO FORM:
AGREEMENT
BETWEEN
OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS IS AN AGR~EMENT made as of 11/9/92 bet~een the city of
Paris, Paris, Texas, acting through its Mayor as authorized by its
City Council (OWNER), and Hayter Engineering, Inc., a Texas
corporation, acting through its duly authorized President
(ENGINEER) .
OWNER now desires services of ENGINEER for a water facilities
improvements project including engineering services as further
described herein in connection with a new raw water transmission
main from Pat Mayse Reservoir to the water treatmen~ plant.
OWNER AND ENGINE~R in consideration of their mutual covenants
herein agree in respect of the performance of professional
engineering service by ENGINEER and the payment for those services
by OWNER as set forth below.
SECTION 1 - BASIC SERVICES OF ENGINEER
1.1 General
1.1.1 ENGINEER shall provide for OWNER professional engineering
services in all phases of the Project to which this Scope of
Services applies as hereinafter provided. These services will
include serving as OWNER'S professional engineering representative
for the Project, providing professional engineering consultation
and advice and furniShing customary civil, structural, mechanical
and electrical engineering services, and customary architectural
services incidental thereto.
1.2 Preliminarv Desian Phase
After written authorization to proceed, ENGINE~R shall:
1.2.1. Consult with OWNER to clarify and define OWNER'S
requirements for the Project and review available data.
1. 2.2.
obtaining
paragraph
services.
Advise OWNER as to the necessity of OWNER'S providing or
from others data or services of the types described in
2.1, and assist OWNER in obtaining such data and
1.2.3. Identify and analyze requirements of governmental
authorities having jurisdiction to approve the design of the
Project and participate in consultations with such authorities.
1.2.4. Prepare a Design Memorandum for approval by the OWNER,
which shall be the basis for work performed in the subsequent
phases.
Page 1 of 23 Pages
EXHIBIT A
The duties and responsibilities of ENGINEER during the Preliminary
Design Phase are amended and supplemented as indicated in Exhibit
A "Further Description of Basic Engineering Services and Related
Matters".
1.3. Desian Field Sur'leVS Phase
After written authorization to proceed with this phase, ENGINEER
shall:
1.3.1. Perfor~ on-the-ground surveys to develop more detailed
drawings for certain portions of the project, as further described
in Exhibit A hereto.
1. 3.2.
described
obtaining
Advise OWNER if additional data or
in paragraph 3.4. are necessary
such data and services.
services of the types
and assist OWNER in
1.4. Final Desian Phase
After written authorization to proceed with the Final Design Phase,
ENGINEER shall:
1.4.1. On the basis of the accepted preliminary documents and
the opinion of probable Total Project Costs prepare for
incorporation in the Contract Documents final drawings to show the
general scope, extent and character of the work to be furnished and
performed by CONTRACTOR(S) (hereinafter called "Drawings") and
Technical Specifications.
1. 4.2. Provide technical criteria, written descriptions and
design data for OWNER'S use in obtaining approvals of such
governmental authorities as have jurisdiction to approve the design
of the project, and assist OWNER in consultations with appropriate
authorities.
1.4.3. Advise OWNER of any adjustments to the latest opinion of
probable Total Project Costs caused by changes in general scope,
extent or character or design requirements of the Project or
Construction Costs. Furnish to OWNER a revised opinion of probable
Total Project Costs based on the Drawings and Specifications.
1. 4.4. Prepare for review and approval by OWNER, its legal
counsel and other advisors contract agreement forms, general
condi tions, and supplementary conditions, and bid forms,
invitations to bid and instructions to bidders and assist in the
preparation of other related documents.
1.4.5. Furnish t..ro copies of the above documents and of the
Drawings and Specifications and present and review them in person
with OWNER. Three additional copies will be furnished by the
ENGINEER to the appropriate review agencies.
Page 2 of 23 Pages
1.5. Biddina Phase
After authorization to proceed with the Bidding Phase, ENGINEER
shall:
1.5.1. Assist OWNER in advertising for and obtaining bids for
each separate prime contract for construction, materials, equipment
and services; and maintain a record of prospective bidders to whom
Bidding Documents have been issued, attend pre-bid conferences and
receive and process deposits for Bidding Documents.
1. 5.2. Issue addenda as appropriate to interpret, clarify or
expand the Bidding Documents.
1.5.3. Consult with and advise OWNER as to the acceptability of
subcontractors, suppliers and other persons and organizations
proposed by the prime contractor(s) (herein called "CONTRACTOR(S)"
for those portions of the work as to which such acceptability is
required by the Bidding Documents.
1.5.4. Consult with OWNER and determine the acceptability of
substitute materials and equipment proposed by CONTRACTOR(S) when
substitution prior to the award of contracts is allowed by the
Bidding Documents.
1.5.5. Attend the bid opening, prepare bid tabulation sheets and
assist OWNER in evaluating bids and in assembling and awarding
contracts for construction, materials, equipment and services.
1.6. Construction Phase
During the construction phase:
;'
1.6.1. General Administration of construction Contract.
ENGINEER shall consult with and advise OWNER and act as OWNER'S
representative as provided in the construction contract. The
extent and limitations of the duties, responsibilities and
authority of ENGINEER as assigned in said contract shall not be
modified, except to the extent provided in Exhibit A "Further
Description of Basic Engineering Services and Related Matters" and
except as ENGINEER may otherwise agree in writing. All of OWNER'S
instructions to CONTRACTORS will be issued through ENGINEER who
will have authority to act on behalf of OWNER to the extent
provided in said construction contract, except as othe~Nise
provided in writing.
1.6.2. visits to site and Observation of Construction. In
connection with observations of the work of CONTRACTOR(S) while it
is in progress:
1. 6.2.1. ENGINEER shall make visits to the site at intervals
appropriate to the various stages of construction as ENGINEER deems
necessary in order to observe as an experienced and qualified
design professional the progress and quality of the various aspects
of the CONTR~CTOR(S) work. Based on information obtained during
Page 3 of 23 Pages
such visits and on such observations, ENGINEER shall endeavor to
determine in general, if such work is proceeding in accordance with
the contract documents and ENGINEER shall keep OWNER informed of
the progress of the work.
1.6.2.2. If requested by OI-INER or recommended by ENGINEER and
agreed to in 'Nriting by the OWNER an on-site observer will be
furnished and will act as directed by ENGINEER in order ~o assist
ENGINEER in observing performance of the work of CONTRACTOR(S).
Such services will be paid for by OWNER as indicated in Section S.
The duties and responsibilities and the limitations on
authority of the on-site observer (if any) will be set forth
separate exhibit which is to be identified, attached to and
a part of this Agreement before such services begin.
the
in a
made
1.6.2.3. The purpose of ENGINEER'S visits to and representation by
the on-site observer (if any) at the site will be to enable
ENGINEER to better carry out the duties and responsibilities
assigned to and undertaken by ENGINEER during the Construction
Phase, and, in addition, by exercise of ENGINEER'S efforts as an
experienced and qualified design professional, to provide for OWNER
a greater degree of confidence that the completed work of
CONTRACTOR(S) will conform generally to the contract documents and
that the integrity of the design concept as reflected in the
contract documents has been implemented and preserved by
CONTRACTOR(S). On the other hand, ENGINEER shall not, during such
visits or as a result of such observations of CONTRACTOR(S) work in
progress, supervise, direct or have control over CONTRACTOR(S)
work, nor shall ENGINEER have authority over or responsibility for
the means, methods, techniques, sequences or procedures or
construction selected by CONTRACTOR(S) for safety precautions and
programs incident to the work of CONTRACTOR(S) or for any failure
of CONTRACTOR(S) to comply with laws, rules, regulations,
ordinances, codes or orders applicable to CONTRACTOR(S) furnishing
and performing their work. Accordingly, ENGINEER can neither
guarantee the performance of the construction contracts by
CONTRACTOR(S), nor assume responsibility for CONTRACTOR(S) failure
to furnish and perform their work in accordance with the contract
documents.
1. 6. 3.
Interoretations and Clarifications
ENGINEER shall issue necessary interpretations and clarifications
of the contract documents and in connection therewith prepare work
directive changes and change orders, as required.
1.6.4.
Shoo Drawinqs
ENGINEER shall review and approve (or take other appropriate action
in respect of) shop drawings (as that term is defined in the
aforesaid construction contract), samples and other data Which
CONTRACTOR(S) are required to submit, but only for conformance with
the design concept of the project and compliance with the
information given in the contract documents. Such reviews and
Page 4 of 23 Pages
approvals or other action shall not extend to means, methods,
techniques, sequences or procedures of construction or to safety
precautions and programs incident thereto.
1. 6.5.
Substi,:utes
ENGINEER shall evaluate and deter~ine the acceptability of
substitute materials and equipment proposed by CONTRACTOR(S) but
subject to the provision of paragraph 2.2.2.
1. 6.6.
Insoections and Tests
ENGINEER shall have authority, as OWNER'S representative, to
require special inspection or testing of the work, and shall
receive and review all certificates of inspections, testings and
approvals required by laws, rules, regulations, ordinances, codes,
orders or the contract documents (but only to determine generally
that their content complies with the requirements of, and the
results certified indicate compliance with, the contract
documents) .
1. 6.7.
Disoutes between OWNER and CONTRACTOR
ENGINEER shall act as initial interpreter of the requirements of
the contract documents and judge of the acceptability of the work
thereunder and make decisions on all claims of OWNER and
CONTRACTOR(S) relating to the acceptability of the work or the
interpretation of the requirements of the contract documents
pertaining to the execution and progress of the work. ENGINEER
shall not be liable for the results of any such interpretations or
decisions rendered in good faith.
1. 6.8.
Aoolications for Payment
Based on ENGINEER'S on-site observations as an experienced and
qualified design professional, on information provided by the on-
site observer (if any), and on review of applications for payment
and the accompanying data and schedules:
1.6.8.1. ENGINEER shall determine the amounts owing to
CONTRACTOR(S) and recommend in writing payments to CONTRACTOR(S) in
such amounts. Such recommendations of payment will constitute a
representation to OWNER, based on such observations and review,
that the work has progressed to the point indicated, and that, to
the best of ENGINEER' 5 knowledge, information and belief, the
quality of such work is generally in accordance with the contract
documents (subject to an evaluation of such work as a functioning
whole prior to or upon substantial completion, to the results of
any subsequent tests called for in the contract documents and to
any other qualifications stated in the recommendation). In the
case of unit price work, ENGINEER'S recommendations of payment will
include final determinations of quantities and classifications of
such work (subject to any subsequent adjustments allowed by the
contract documents) .
Page 5 of 23 Pages
1.6.8.2. By recolluuending any payment ENGINEER will not thereby be
deemed to have represented that exhaustive, continuous or detailed
reviews or examinations have been made by ENGINEER to check the
quality or quantity of CONTRACTOR(S) work as it is furnished and
perfor:ned beyond the responsibilities specifically assigned to
ENGINEER in this Scope of Services and the contract documents.
ENGINEER'S review of CONTRACTOR(S) work for the purposes of
recommending payments will not impose on ENGINEER responsibility to
supervise, direct, or control such work or for the means, methods,
techniques, sequences, or procedures of construction or safety
precautions or programs incident thereto or CONTRACTOR(S)
compliance with laws, rules, regulations, ordinances, codes or
orders applicable to their furnishing and performing the work. It
will also not impose responsibility on ENGINEER to make any
examination to ascertain how or for what purposes any CONTRACTOR
has used the monies paid on account of the contract price, or to
determine that title to any of the work, materials or equipment has
passed to OWNER free and clear of any lien, claims, security
interests or encumbrances, or that there may not be other matters
at issue between OWNER and CONTRACTOR that might affect the amount
that should be paid.
1. 6.9.
CONTRACTOR(S) Completion Documents
ENGINEER shall receive and review maintenance and operating
instruction, schedules, guarantees, bonds and certificates of
inspection, tests and approvals which are to be assembled by
CONTRACTOR(S) in accordance with the contract documents (but such
review will only be to determine that their content complies with
the requirements of, and in the case of certificates of inspection,
tests and approvals that the results certified indicate compliance
with, the contract documents); and shall transmit them to OWNER
with written comments.
1.6.10.
Inspections
ENGINEER shall conduct an inspection to determine if the work is
substantially complete and a final inspection to determine if the
completed work is acceptable so that ENGINEER may recommend, in
writing, final payment to CONTRACTOR(S) and may give written notice
to OWNER and the CONTRACTOR(S) that the work is acceptable (subject
to any conditions therein expressed), but any such recommendation
and notice will be subject to the limitations expressed earlier in
this Section 1.
1. 6 . 11.
Limitation of Responsibilities
ENGINEER shall not be responsible for the acts or omissions of any
CONTRACTOR(S), or of any subcontractor or supplier, or any of the
CONTRACTOR(S) or subcontractor's suppliers, agents or employees, or
any other persons (except ENGINEER'S own employees and agents) at
the site or otherwise furniShing or performing any of the
CONTRACTOR(S) work; however, nothing contained in section 1. 6.
shall be construed to release ENGINEER from liability for failure
Page 6 of 23 Pages
to properly perfor~ duties and responsibilities assumed by ENGINEER
in the cont~ac~ documents.
SECTION 2 - ADDIT!ONALSERV!CES OF ENGINEER
2.1. Services Reauirina Authorization in Advance
If authorized by OWNER, ENGINEER shall furnish or obtain from
others Additional Services of the types listed in the paragraphs of
Section 2.1. These services are not included as part of Basic
Services, except to the extent provided otherwise in Exhibit A
"Further Desc~iption of Basic Engineering Services and Related
Matters;" these will be paid for by OWNER, as indicated in section
5.
2.1.1. p~epa~ation of applications and supporting documents (in
addition to those furnished under Basic Services) for private or
governmental grants, loans or advances in connection with the
Project; review and evaluation of the effect on the design
requirements of the Project of any documents prepared by others;
and assistance in obtaining approvals of authorities having
jurisdiction over the anticipated environmental impact of the
Project.
2.1. 2.
existing
drawings
services to make measured drawings of or to investigate
conditions or facilities, or to verify the accuracy of
or other information furnished by OWNER.
2.1.3. Services resulting from significant changes in the
general scope, extent or character of the Project or its design
including, but not limited to, changes in size, complexity, OWNER'S
schedule, character of construction or method of financing; and
revising previously accepted studies, reports, design documents or
contract documents, when such revisions are required by changes in
laws, rules, regulations, ordinances, codes or orders enacted
subsequent to the preparation of such studies, reports or
documents, or are due to any other causes beyond ENGINEER'S
control.
2.1.4.
Providing renderings or models for OWNER'S use.
2.1.5. Preparing documents for alternate bids requested by OWNER
for CONTRACTOR(S) work which is not executed, or documents for out-
of-sequence work.
2.1.6. Furnishing services of independent professional
associates and consultants for other than Basic Services (which
include, but are not limited to, customary civil, structural,
mechanical and electrical engineering and customary architectural
design incidental thereto); and providing data or services of the
types described in paragraph 3.4. when OWNER employs ENGINEER to
provide such data or services in lieu of furnishing the same in
accordance with paragraph 3.4.
Page 7 of 23 Pages
2.1. 7.
other than
Sec1:.ion 1.
Services during out-of-town travel required of ENGINEER,
visits to the site or OWNER'S office, as required by
2.1.8. Assistance in connection with bid protests, rebidding or
renegotiating contrac1:.S for construction, materials, equipment or
services.
2.1.9. Providing any type of property surveys or related
engineering services needed for the transfer of interests in real
property and field surveys for design purposes and engineering
surveys and staking to enable CONTRACTOR(S) to proceed with their
work; and providing other special field surveys.
2.1.10.
manuals.
Preparation of opera1:.ing, maintenance and staffing
2.1.11. Preparing to serve or serving as a consultant or witness
for OWNER in any litigation, arbitration or other legal or
administrative proceeding involving the project.
2.1.12. Additional services in connection with the Project,
including services which are to be furnished by OWNER in accordance
with Article 3, and services not otherwise provided for in this
Agreement.
SECTION 3 - OWNER'S RESPONSIBILITIES
OWNER shall do the following in a timely manner so as not to delay
the services of ENGINEER.
3.1. Designate in writing a person to act as OWNER'S representative
with respect to the services to be rendered under this Agreement.
Such person shall have complete authority to transmit instructions,
receive information, interpret and define OWNER'S policies and
decisions with respect to ENGINEER'S services for the Project.
3.2. Provide all criteria and full information as to OWNER'S
requirements for the Project, including design objectives and
constraints, spaces, capacity and performance requirements,
flexibility and expandability, and any budgetary limitations; and
furnish copies of all design and construction standard which OWNER
will require to be included in the Drawings and Specifications.
3.3 Assist ENGINEER
available information
reports and any other
the Project.
by placing at ENGINEER'S disposal all
pertinent to the Project inCluding previous
data relative to design or construction of
3.4. Furnish to ENGINEER, as required for performance of ENGINEER'S
Basic Services (except to the extent provided otherwise in Exhibit
A "Further Description of Basic Engineering Services and Related
Matters"), the following:
Page 8 of 23 Pages
3.4.1. Data prepared by or services of others, including '.oIithout
limitation borings, probings and subsurface explorations,
hydrographic surveys, laboratory tests and inspec~ions of samples,
materials and equipment;
3.4.2. Appropriate professional interpretations of all of the
foregoing:
3.4.3.
Environmental assessment and impact statements.
3.4.4. Property, boundary, easement, right-of-way, topographic
and utility surveys;
3.4.5.
Property descriptions;
3.4.6.
Zoning, deed and other land use restriction; and
3.4.7. Other special data or consultations not covered in
section 2; all of which ENGINEER may use and rely upon in
performing services under this Agreement.
3.5. Provide engineering surveys to establish reference points for
construction (except to the extent provided otherwise in Exhibit A
"Further Description of Basic Engineering Services and Related
Matters") to enable CONTRACTOR(S) to proceed with the layout of the
work.
3.6. Arrange for access to and make all provisions for ENGINEER to
enter upon public and private property, as required for ENGINEER to
perform services under this Agreement.
3.7. Examine all studies, reports, sketches, Drawings,
Specifications, proposals and other documents presented by
ENGINEER, obtain advice of an attorney, insurance counselor and
other consultants as OWNER deems appropriate for such examination
and render in writing decisions pertaining thereto within a
reasonable time so as not to delay the services of ENGINEER.
3.8. Furnish approvals and
authorities having jurisdiction
and consents from others as may
Project.
permits from all governmental
over the project and such approvals
be necessary for completion of the
3.9. Provide such accounting, independent cost estimating and
insurance counseling services as may be required for the Project,
such legal services as OWNER may require or ENGINEER may reasonably
request with regard to legal issues pertaining to the Project
including any that may be raised by CONTRACTOR(S), such auditing
service as OWNER may require to ascertain how or for what purpose
any CONTRACTOR has used the monies paid under the construction
contract, and such inspection services as OWNER may require to
ascertain that CONTRACTOR(S) are complying with any law, rule,
regulation, ordinance, code or order applicable to their furnishing
and performing the work.
Page 9 of 23 Pages
3.10. If OWNER designates a person to represent OWNER at the
site who is not ENGINEER or ENGINEER'S agent or employee, the
duties, responsibilities and limitations of authority of sucn other
person and the af:ec~ thereof on the duties and responsibilities of
ENGINEER will be set for~h in an exhibi~ that is to be identified,
attached to and made a part of this Agreement before such services
begin.
3.11 If more than one prime contract is to be awarded for
construction, materials, equipment and services for the entire
Project, designate a person or organization to have authority and
responsibility for coordinating the activities among the various
prime contractors.
3.12. Furnish to ENGINEER data or estimated figures as to
OWNER'S anticipated costs for services to be provided by others for
OWNER so that ENGINEER may make the necessary findings'to support
opinions of prObable Total Project Costs.
3.13. Attend the pre-bid conference, bid
preconstruct ion conferences, construction progress and
related meetings and substantial completion inspections
payment inspections.
opening,
other job
and final
3.14. Gi ve prompt written notice to ENGINEER whenever OWNER
observes or otherwise becomes aware of any development that affects
the scope or timing of ENGINEER'S services, or any defect or non-
conformance in the work of any CONTRACTOR.
3.15.
Services
services
Furnish, or
as stipulated
as required.
direct ENGINEER to provide, Additional
in paragraph 2.1 of this Agreement or other
3.16. Bear all costs incident to compliance with the
requirements of this Section 3.
SECTION 4 - PERIOD OF SERVICE
4.1. The provisions of this Section 4 and the various rates of
compensation for ENGINEER'S services provided for elsewhere in this
Agreement have been agreed to in anticipation of the orderly and
continuous progress of the Project through completion of the
Construction Phase. ENGINEER'S obligation to render services
hereunder will extend for a period which may reasonably be required
for the des ign, award of contracts, and construction of the
project, including extra work and required extensions thereto.
4.2. ENGINEER'S services under the Preliminary Design, Field
surveys and the Final Design Phase shall each be considered
complete at the earlier of (1) the date when the submissions for
that phase have been accepted by OWNER or (2) thirty days after the
date when such submissions are delivered to OWNER for final
acceptance, plus such additional time as may be considered
reasonable for obtaining approval of governmental authorities
having jurisdiction over design criteria applicable to the Project.
Page 10 of 23 Pages
I
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I.
4.3. After accepcance by OWNER of the ENGINEER'S Drawings,
specifications and other Final Design Phase documentation including
the most recent opinion of probable Project Cost, ENGINEER shall
proceed with performance of the services called for in the Bidding
Phase. This Phase shall terminate and the services to be rendered
thereunder shall be considered complete upon commencement of the
Construction Phase or upon cessation of the negotiations with
prospective C8NTRACTOR(S) .
i
4.4 The Construction Phase will commence with the execution of the
prime construction contract to be executed for the work of the
Project, and will terminate upon written recommendation by ENGINEER
of final payment on the prime construction contract.
SECTION 5 - PAYMENTS TO ENGINEER
5.1. Methods of Payment for Services and Expenses of ENGINEER.
5.1.1.
For Basic Services:
OWNER shall pay ENGINEER for basic services outlined
herein, a lump sum of $262,000.
5.1.2. For Additional Services - OWNER shall pay ENGINEER for
additional services rendered under this Agreement as follows:
5.1.2.1. General - For Additional Services rendered, on the basis
of per diem hourly rates shown on Exhibit B hereto for services
rendered by principals and employees assigned to the Project.
5.1.2.2. Soecial Consultants For services and reimbursable
expenses of special consultants employed by ENGINEER pursuant to
Section 2.1, the amount billed to ENGINEER therefor, ti~es a factor
of 1.05.
5.1.2.3. For Reimbursable Exoenses - In addition to payments
provided for in paragraphs 5.1.2.1. and 5.1.2.2., OWNER shall pay
ENGINEER the accual costs of all Reimbursable Expenses incurred in
connection with all Additional Services. The term "Reimbursable
Expenses" means the actual expense incurred directly or indirectly
in connection with the Project for: transportation and subsistence
incidental to locations other than the site; furniShing and
maintaining field office facilities; subsistence and transportation
of on-site observers; toll telephone calls and telegrams; special
package delivery charges; laboratory testing fees; reproduction of
reports, Drawings, Specifications, and similar Project-related
items in addition to those required under Section 1; and, if
authorized in advance by OWNER, overtime work requiring higher than
regular rates.
5.2. Times of Pavments
5.2.1. ENGINEER shall submit monthly statements for Basic and
Additional Services rendered and for Reimbursable Expenses
incurred. The statements will be based upon ENGINEER'S estimate of
Page 11 of 23 Pages
the proportion of the total services actually completed at the time
of billing. OWNER shall make prompc monchly payments in response
to ENGINEER'S monchly stacements.
5.3. Other Provisions concerninq ?avments
5.3.1. If OWNER fails to make any payment due ENGINEER for
services and expenses within thirty days after receipt of
ENGINEER'S statement therefor, the amounts due ENGINEER will be
increased at the rate of 1% per month from the thirtieth day, and
in addition, ENGINEER may, after giving seven days' written notice
to OWNER, suspend services under this Agreement until he has been
paid in full all amounts due him for services, expenses and
charges.
5.3.2. In the evenc of terminacion by OWNER upon the completion
of any phase of the 8asic Services, progress payments due ENGINEL~
for services rendered through such phase shall constitute total
payment for such services. In the event of such termination by
OWNER during any phase of the Basic Services, ENGINEER shall be
paid for services rendered during that phase on the basis of the
attached per diem rates for services rendered during that phase to
date of termination by ENGINEER'S principals and employees engaged
directly on the Project. In the event of any such termination,
ENGINEER also will be reimbursed for the charges of independent
professional associates and consultants employed by ENGINEER to
render Basic Services, and for all unpaid Additional Services and
unpaid Reimbursable Expenses, plus all termination expenses.
Termination expenses mean Reimbursable Expenses directly
attributable to termination.
SECTION 6 - OPINIONS OF COST
6.1. ooinions of Cost
Since ENGINEER has no control over the cost of labor, materials,
equipment or services furnished by others, or over the
CONTRACTOR(S) methods of determining prices, or over competitive
bidding or market conditions, his opinions of probable Project Cost
and Construction Cost provided for herein are to be made on the
basis of his experience and qualifications and represent his best
judgement as an experienced and qualified professional engineer,
familiar with the construction industry; but ENGINEER cannot and
does not guarantee that proposals, bids or actual Project or
Construction Cost will not vary from opinions or probable cost
prepared by ENGINEER. If prior to the Bidding or Negotiating
Phase, OWNER wishes greater assurance as to Project or Construction
cost, he shall employ an independent cost estimator as provided in
section 3.
SECTION 7 - GENERAL CONSIDERATIONS
7.1. Insurance
Page 12 of 23 Pages
7.~.~. ENGINEER shall procure
protection from claims under workers'
damages because of bodily injury
sickness or disease or dea~~ of any
person other than such employees,
because of injury to or des~ruction
use resulting therefrom.
and maintain insurance for
compensation acts, claims for
including personal injury,
and all employees or of any
and from claims or damages
of property including loss of
7.1.2 OWNER shall procure and maintain similar coverage for any
of its employees engaged on the Project, and shall require all
construction contractors associated with the project to procure and
maintain at least statutory workmen's compensation and contractor's
liability coverage.
7.2. Nothing under this Agreement shall be construed to give any
rights or benefits in this Agreement to anyone other than OWNER and
ENGINEER, and all duties and responsibilities undertaken pursuant
to this Agreement will be for the sole and exclusive benefit of
OWNER and ENGINEER and not for the benefit of any other party.
7.3. Indemni tv - The OWNER will require that any construction
contractor or subcontractors performing work in connection with
Drawings and specifications produced under this Agreement hold
harmless, indemnify and defend, the OWNER and this ENGINEER their
consultants, and each of their officers, agents, and employees from
all liability claims, losses or damage arising out of or alleged to
arise from the CONTRACTOR'S or any subcontractor's negligence in
the performance of the work described in the Construction Contract
Documents.
7.4. Termination - The obligation to provide further services under
this Agreement may be terminated by either party upon thirty days
written notice in the event of substantial failure by the other
party to perform in accordance with the terms hereof through no
fault of the termination party.
7.5 Controllina Law - This Agreement is to be governed by the laws
of the State of Texas.
7.6. Successors and Assians - ENGINEER and OWNER each is hereby
bound and the partners, successors, executors, administrators, and
legal representatives of OWNER and ENGINEER are hereby bound to the
other party to this Agreement and to the partners, successors,
executors, administrators, assigns and legal representatives (and
said assigns) of such other party, in respect to all covenants,
agreements and obligations of this Agreement.
7.7. Limitation of Liabilitv The OWNER agrees to limit the
ENGINEER'S liability to the OWNER and to all construction
contractors and subcontractors on the Project, due to the
ENGINEER'S professional negligent acts, errors or omissions, such
that the total aggregate liability of the ENGINEER to those named
shall not exceed Five Hundred Thousand Dollars ($500,000) or the
ENGINEER'S total fee for services rendered on this project,
whichever is greater.
Page 13 of 23 Pages
SECTION a - SPECIAL PROVISIONS. EXHIBITS AND SCHEDULES
8.1. The following Exhibits are attached to and made a part of this
Agreement:
8.1.1. Exhibit A "Further Description of Basic Engineering Services
and Related Matters."
8.1.2. Exhibit B "Schedule of Per Diem Rates."
8.2. This Agreement (consisting of pages 1 to 23 inclusive),
together with the Exhibits and Schedules identified above
constitute the entire Agreement between OWNER and ENGINEER and
supersede all prior written or oral understandings. This Agreement
and said Exhibits and schedules may only be amended, supplemented,
modified or cancelled by a duly executed written instrument.
IN WITNESS WHEREOF, the parties have made and executed this
Agreement as of the day and year first above written.
OWNER: CITY OF PARIS, PARIS, TEXAS
ENGINEER: HAYTER ENGINEERING, INC.
George Fisher, Mayor
R. Reeves Hayter, President
Address for giving notices:
Address for giving notices:
P.O. Box 9037
paris, Texas 75461-9037
4445 S.E. Loop 286
Paris, Texas 75460
ATTEST:
ATTEST:
Mattie cunningham, City Clerk
APPROVED AS TO FORM:
T. K. Haynes, City Attorney
Page 14 of 23 Pages
Exhibit A
to Agreement
Between Owner and Engineer
for Professional Services
Further Descriotion of Basic Enqineerinq Services and Related
Ma1:ters
1.3.1.
It is understood that OWNER has previously obtained
topographic surveys of the pipeline route. ENGINEER will be
provided these surveys, and shall be entitled to rely thereon
as described in Section 3.4.7.
2.1 At the request of OWNER, ENGINEER will assist in the
preparation of one application for grant-in-aid assistance to
the u.s. Department of Commerce, Economic Development
Administration. ENGINEER'S fee for said assistance will be
a lump sum of $1,500. ENGINEER will endeavor to assist OWNER
to the best of his professional ability, but makes no
guarantees, express or implied, as to the successful outcome
of any such application.
3.4.4.
ENGINEER will consult with area utility companies regarding
the locations of existing lines, including water, sewer, gas,
electric, and CATV. These will be indicated on the drawings at
locations identified by the respective utility, and the
ENGINEER will not be required to independently verify such
locations.
4.5.
Subject to timely approval by the OWNER and any funding or
regulatory authorities, the following schedule is projected:
completion of Preliminary Plans and Specifications
Completion of Final Plans and Specifications
Secure State and Local Approvals
start of Construction
9-1-92
12-1-92
3-1-93
5-1-93
5.5.1.
The present scope of work includes engineering services as
described in the agree~ent for a raw water transmission main,
anticipated to be ~' diameter or larger (size to be
determined in Design Memorandum), from the City's existing
intake structure at Pat Mayse Reservoir to the City's existing
water treat~ent plant; a walkway from the shoreline to the
intake structure; and modifications to the raw water pumps to
accommodate the new transmission main.
Page 15 of 23 Pages
Exhibit B
Schedule of ~er Diem
January 1, 1992
Rates
Personnel
Hourly Rates
Engineers
Junior Engineers
Technicians
Draftsmen
Administration
Principals
On-Site Observer
$60.00
40.00
32 .00
19.00
29.00
90.00
25.00
This Schedule of hourly rates is effective until January 1, 1993.
After that date, the ENGINEER may, at his discretion, adjust said
rates, by an amount not-to-exceed the increase of the Consumer
Price Index for all urban consumers, u.S. City Average, as
established by the Bureau of Labor Statistics, U.S. Department of
Labor, with January, 1988 being the base index number, to wit:
115.7 for each succeeding twelve-month period.
Page 16 of 23 Pages
Exhibit C
EDA Required Services
The following requirements are hereby deemed a portion of this
contract:
i. All negotiated Architect/Engineer contracts (except
those of $10,000 or less awarded under small purchase
procedures) awarded by Grantees shall include a
provision to the effect that the Grantee, EDA, the
Comptroller General of the United States, the
Inspector General of the Department of Commerce, or
any of their duly authorized representatives, shall
have access to any documents, books, papers, and
records of the Architect/Engineer which are directly
pertinent to a specific grant program for the purpose
of making an audit, examination, excerpts, and
transcriptions. The Grantee shall require the
Architect/Engineer to maintain all required records
for at least three years after the Grantee makes final
payment and all pending matters are closed.
j. The agreement for Architect/Engineer services shall
provide an adequate basis for the Grantee to require
the Architect/Engineer to:
(1) design the project in accordance with the intent
of the Loan and/or Grant Agreement between the
Grantee and EDA;
(2) redesign the project in the event the preliminary
cost estimate, the final cost estimate, or the
lowest responsive bid less deductive alternates,
exceeds the funds available by an amount or
percentage to be mutually agreeable to the
Grantee and the Architect/Engineer;
(3) design any sewage treatment or other sewage
facility so that a certificate can be obtained
from the Environmental Protection Agency (EPAl as
required by Section 106 of the Public Works and
Economic Development Act of 1965;
Page 17 of 23 Pages
(4) include in all contracts and subcontracts of
amounts in excess of $100,000 a provision which
reauires comoliance with all aoolicable
standards, orders, or reauirements issued under
Section 306 of the Clean-Air Act (42 U.S.
1857 (h)), Section 508 of the Clean Water Act (33
U.S.C. 1368), Executive Order 11738, and
Environmental protection Agency regulations (40
CFR, Part 15), which prohibit the use under
non-exempt Federal contracts, grants or loans of
facilities included on the EPA List of Violating
Facilities; the provisions shall require
reporting of violations to the EDA and to the
U. S. Environmental Protection Agency Assistant
Ad~inistrator for .Enforcement;
(5) include in all contracts and subcontracts other
than for small purchases (procurement of
services, supplies or other property costing in
the aggregate not more than $10,000) provisions
or conditions which will allow for
administrative, contractual or legal remedies in
instances where contractors violate or breach
contract terms, and provide for such sanctions
and penalties as may be appropriate;
(6) include in all contracts in excess of $10,000
suitable provisions for termination by the
Grantee including the manner by which it will be
affected and the basis for settlement; in
addition, such contracts shall describe
conditions under which the contract may be
terminated for default as well as conditions
where the contract may be terminated because of
circumstances beyond the control of the
contractor;
(7) include in all contracts in excess of $10,000 a
provision requiring compliance with Executive
Order 11246, entitled "Equal Employment
opportunity", as amended by Executive Order
11375, and as supplemented in Department of Labor
regulations (41 CFR, Part 60) ;
(8) include in all concracts for construction or
repair a provision for compliance with the
Copeland "Anti-Kickback" Act (18 USC 874) as
supplemented in Department of Labor regulations
(29 CFR, Part 3); this Act provides that each
contractor or subgrantee shall be prohibited from
inducing, by any means, any person employed in
Page 18 of 23 Pages
-
the const~uction, completion, oe repaie of public
work, to gi~e up any part of the compensation to
which he/she is otherwise entitled; the Grantee
shall repoet all suspected oe eepoeted ~iolations
to EOA;
(9) include in all construction conte acts in excess
of $2,000 a pro~ision for compliance with the
Da~is-Bacon Act (40 USC 276a to a-7) as
supplemented by Department of Labor regulations
(29 CFR, Part 5); under this Act contractors
shall be required to pay wages to laborers and
mechanics at a rate not less than the minimum
wages specified in a wage determination made by
the Secretary of Labor; in addition, contractors
shall be required to pay wages not less often
than once a week; a copy of the current
pre~ailing wage determination issued by the
Department of Labor must be included in each
solicitation and the award of a contract shall be
conditioned upon the acceptance of the wage
determination; all suspected or reported
violations shall be reported to EDA; Da~is-Bacon
wage determinations are not applicable to "Force
Account" workers;
(10) include in all contracts in excess of $2,000 for
construction contracts and in excess of $2,500
for other contracts which invol~e the employment
of mechanics or laborers a provision for
compliance with Sections 103 and 107 of the
Contract Work Hours and Safety Standards Act (40
USC 327-330) as supplemented by Department of
Labor regulations (29 CFR, Part 5); under
Section 103 of the Act, each contractor shall be
required to compute the wages of e~ery mechanic
and laborer on the basis of a standard work day
of a hours and a standard work week of 40 hours.
Work in excess of the standard work day or work
week is permissible provided that the worker is
compensated at a rate of not less than 1-1/2
times the basic rate of pay for all hours worked
in excess of a hours in any calendar day or 40
hours in the work week; Section 107 of the Act
is applicable to construction work and provides
that no laborer or mechanic shall be required to
work in surroundings or under working conditions
which are unsanitary, hazardous, or dangerous to
his/her health and safety as determined under
construction, safety and health standards
promulgated by the Secretary of Labor; these
requirements do not apply to the purchases of
supplies or materials or articles ordinarily
available on the open market, or contracts for
transportation or transmission of intelligence;
Page 19 of 23 Pages
~
~
I
(11) include a notice in all contracts involving
research, develoomental, exoerimental or
demonstration wock requiring that all patentable
processes, discoveries or inventions which arise
or are developed in the course of, or under, such
contract shall be reported to EDA; the notice
will state that EDA has an interest in any such
patentable processes, discoveries or inventions
corresponding to the percentage of total project
cost funded by EDA;
(12) include in all negotiated contracts (except those
awarded by small purchase procedures) a provision
to the effect that the Grantee, EDA, the
Comotroller General of the united States, or anv
of their duly authorized representatives, shall-
have access to any books, documents, papers, and
records of the contractor which are directlv
pertinent to that specific contract, for th~
purpose of making audit, examination, excerpts,
and transcriptions;
(13) include in all contracts a requirement that the
contractor maintain all relevant project records
for three years after the Grantee has made final
payment to the contractor and all other pending
matters are closed;
(14) include in all contracts a provision recognizing
mandatory standards and policies relating to
energy efficiency which are contained in the
State energy conservation plan issued in
compliance with the Energy Policy and
Conservation Act (P.L. 94-165);
(15) state a specific timetable in the agreement for:
(a) completing preliminary plans and associated
cost estimates;
(b) completing final plans, specifications, and
cost estimates;
(c) securing required State and local approvals;
and
(d) completing proposed contract documents in a
form sufficient for soliciting bids for
construction of the project;
if the Grantee has executed an Architect/Engineer
agreement without such a requirement for a
timetable, EDA shall require that an addendum to
the agreement be executed to incorporate this
requirement;
Page 20 of 23 Pages
(16) provide surveillance of project construction to
assure compliance with plans, specifications, and
all other contract documents; if the Grantee
chooses to use the Architect/Engineer as the
project inspector, the requirements for
construction inspection services shall be clearly
defined and a limit placed on the amount the
Grantee is required to pay for such services;
(17) be responsible for any damages arising from any
defects in design or negligence in the
performance of the construction inspector, if the
inspector is furnished by the
Architect/Engineer; EDA recommends that the
Architect/Engineer be required to take insurance,
when available, to cover liability for such
damages;
(l8) supervise any required subsurface explorations
such as borings, soil tests, and the like, to
determine amounts of rock excavation or
foundation conditions, no matter whether they are
performed by the Architect/Engineer or by others
paid by the Grantee;
(l9) attend bid openings, prepare and submit
tabulation of bids, and make a recommendation as
to contract award;
(20) review proof of bidder's qualifications and
recommend approval or disapproval;
(2l) prepare and submit proposed contract change
orders when applicable; there shall be no charge
to the Grantee when the change order is required
to correct errors or omissions by the Architect/
Engineer; to be eligible for EDA participation
the specific change order must have express
approval from EDA and must have some form of cost
or price analysis performed by the Grantee or the
Architect/Engineer;
(22) submit a report at least quarterly to the Grantee
covering ~~e general progress of the job and
describing any probler-s or factors contributing
to delay;
(23) review and approve the contractor's SChedule of
amounts for contract payment;
(24) certify partial payments to contractors;
Page 21 of 23 Pages
(25) assure that a ten percent (lO%) retainage is
withheld from all payments on construction
contracts until final acceptance by the Grantee
and approval by the EDA Regional Office, unless
State or local law provides otherwise;
(26) prepare "as-built" or record drawings after
completion of the project; reproducible
originals will be furnished to the Grantee within
60 days after all construction has been completed
and the final inspection has been performed; one
set of copies shall be furnished to the EDA
Regional Office upon request;
(27) review and approve Contractor's submission of
samples and shop drawings, where applicable;
(28) comply with all applicable provisions of the
Regulations of the united States Department of
Commerce (Part 8 of Subtitle 15 of the Code of
Federal Regulations) issued pursuant to the Civil
Rights Act of 1964, in regard to
nondiscrimination in employment because of race,
religion, color, sex or national origin;
(29) incorporate into the proposed construction
contract documents a designation of all of the
different types of construction which will be
used for the project; such as Building, Heavy or
Highway in accordance with all local and State
laws and practices; for this purpose either the
plans, the specifications or both shall clearly
delineate where each type stops and another
starts;
(30) consider in the establishment of the compensation
any cost savings that may be realized through
multiple use of the same design;
(31) provide in all proposed construction contracts
deductive alternates (additive alternatives will
not be approved by EDA), where feasible, so that
should the lowest responsive base bid for
construction of the project exceed the funds
available, deductive alternatives can be taken to
reduce the bid price;
(32) design for access by the handicapped to
facilities to be used by the public in accordance
with Public Law 90-480, as amended, 42 USC
4l5l-4l56;
Page 22 of 23 Pages
(33) provide sufficient plans, specifications, bid
sheets, cost estimates, design analysis, and
other contract documents required for the
project; the number of copies to be furnished by
the Architect/Engineer as part of his/her
compensation for basic services shall be
specified; and
(34) use forms for instructions to bidders, general
conditions, contract, bid bond, performance bond,
and payment bond which have EDA approval; all
contract documents shall be subject to EDA
approval.
Page 23 of 23 Pages