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SS9402-CS 941025AGREEMENT BETWEEN CITY OF COPPELL, TEXAS OWNER AND HDR ENGINEERING, INC. FOR PROFESSIONAL ENGINEERING SERVICES FOR THE SANITARY SEWER IMPROVEMENTS PROJECT NO. SS9402 - GRAPEVINE CREEK III, IV AND BETHEL ROAD PROJECT OCTOBER 25, 1994 DRAFT TABLE OF CONTENTS Page IDENTIFICATION OF THE PARTIES ................................. I DESCRIPTION OF THE PROJECT ................................... I SECTION I - 1.1 1.2 1.3 1.4 1.5 1.6 1.7 BASIC SERVICES ................................... 1 Description of Basic Services ........................... 1 Not part of this Agreement ............................. · 1 Preliminary Design Phase .............................. 1 Design Phase (Final) ................................. 2 Bidding Phase ...................................... 2 Construction Phase - Administration of the Construction Contract . 3 Operational Phase .................................. 4 SECTION 2 - ADDITIONAL SERVICES .............................. 4 2.1 General ......................................... 4 2.2 Not part of this Agreement ............................. 5 2.3 Other Additional Services ............................. 5 SECTION 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 3.10 3.11 3.12 3 - OWNER'S RESPONSIBILITIES .......................... 7 Owner's Representative .............................. 7 Provide Existing Data ................................ 7 Provide Standards .................................. 7 Provide Soils and Geotechnical Engineering ................. 8 Provide Land Surveys ................................ 8 Provide Access .................................... 8 Examine Documents ................................. 8 Provide Environmental Studies .......................... 8 Provide Accounting and Other Services .................... 8 Provide Advertising ................................. 9 Provide Prompt Notice ............................... 9 Approvals and Decisions .............................. 9 SECTION 4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8 4.9 4 - PERIODS OF SERVICE ............................... 9 Generally ......................................... 9 Period of Service for Each Phase ........................ 9 Completion of Services ............................... 9 Bidding (or Negotiating) Phase .......................... 10 Construction Phase ................................. 10 Operational Phase .................................. 10 Changes ......................................... 10 Prompt Authorization to Proceed ........................ 10 Delay ........................................... 1 1 TABLE OF CONTENTS - Continued Page SECTION 5 - PAYMENTS TO ENGINEER ............................ 1 1 5.1 5.2 5.3 5.4 5.5 Payment Terms Defined .............................. 11 Basis and Amount of Compensation for Basic Services ......... 12 Basis and Amount of Compensation for Additional Services ...... 12 Intervals of Payments Under Lump Sum Basis of Payment ....... 12 Other Provisions Concerning Payments .................... .13 SECTION 6 - CONSTRUCTION COST AND OPINIONS OF COST ............ 14 6.1 Construction Cost .................................. 14 6.2 Opinions of Probable Construction Cost ................... 14 SECTION 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 7.9 7.10 7.11 7.12 7.13 7.14 7.15 7 - GENERAL CONSIDERATIONS .......................... 15 Standard of Care ........ · ........................... 15 Termination ....................................... 15 Reuse of Documents ................................ 15 Engineer's Liability .................................. 16 Insurance ........................................ 16 Controlling Law .................................... 17 Successors and Assigns .............................. 17 Not part of this Agreement ............................. 17 Equal Employment and Nondiscrimination ................... 17 Indemnification .................................... 17 Construction Procedures .............................. 18 Not part of this Agreement ............................. 18 Changes and Modifications ............................ 18 Severability and Waiver ............................... 18 Extent of Agreement ................................ 18 APPENDIX--DETAILED SCOPE OF SERVICES, EXHIBITS AND SCHEDULES ..... 20 AGREEMENT BETWEEN CITY OF COPPELL, TEXAS AND HDR ENGINEERING, INC. FOR PROFESSIONAL ENGINEERING SERVICES DRAFT THIS AGREEMENT is made as of this 25th day of October, 1994, between City of Coppell, Texas with principal offices at 255 Parkway Boulevard, Coppell, Texas, 75019, hereinafter referred to as "OWNER", and HDR Engineering, Inc., with offices at 12700 Hillcrest Road, Suite 125, Dallas, Texas 75230-2096, hereinafter referred to as "ENGINEER," for Sanitary Sewer Improvements, Project No. SS9402 Grapevine Creek III, IV and Bethel Road hereinafter called the "PROJECT." OWNER and ENGINEER, in consideration of the mutual covenants contained herein, agree as follows: SECTION I - BASIC SERVICES 1.1 Description of Basic Services 1.1.1 ENGINEER's basic services and responsibilities are described as follows and are further defined in the Appendix, Exhibit A, "Scope of Services," which is made part of this Agreement as if fully set forth herein. 1.1.2 ENGINEER shall provide professional services to OWNER as hereinafter provided. These services will include providing professional engineering consultation and advice and furnishing civil, engineering services and related architectural and engineering services incidental thereto. 1.2 Not part of this Agreement. 1.3 Preliminary Design Phase. After written authorization to proceed with the Preliminary Design Phase, ENGINEER shall: 1.3.1 In consultation with OWNER, determine the general scope, extent and character of the PROJECT. 1.3.2 Prepare Preliminary Design documents, consisting of preliminary drawings and specifications. City of Coppell, Texas Page I 10-25-94 1.3.3 Advise OWNER if additional data or services of the types described in paragraphs 3.2 or 3.4 are necessary and assist OWNER in obtaining such data and services. 1.3.4 Submit an Opinion of Probable Construction Costs, based on the information contained in the Preliminary Design documents. 1.3.§ Furnish two (2) copies of the above Preliminary Design (Predesign) documents and present and review them in person with OWNER. 1.4 Design Phase (Final) After written authorization to proceed with the Design Phase (Final), ENGINEER shall: 1.4.1 Prepare final drawings and specifications for incorporation in the Contract Documents, based on the OWNER approved Preliminary Design documents and the revised Opinion of Probable Construction Costs. These documents are prepared to show the general scope, extent and character of the work to be furnished and performed by Contractor, hereinafter called "Drawings and Specifications." The specifications will be prepared in conformance with the sixteen division format of the Construction Specifications Institute and will be based on ENGINEER'S master specifications, General Conditions and other Contract Documents. 1.4.2 Advise OWNER of any adjustments to the latest Opinion of Probable Con- struction 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 Construction Costs based on the Drawings and Specifications. 1.4.3 Prepare for review and approval by OWNER, its legal counsel and other advisors, contract agreement forms, general and supplementary conditions of the construction contract, proposal form, invitations to bid and instructions to bidders, hereinafter referred to as "Contract Documents." 1.4.4 Furnish two (2) copies of the above documents and of the Drawings and Specifications and present and review them in person with OWNER. 1.5 Bidding Phase After written authorization to proceed with the Bidding Phase, ENGINEER shall: 1.5.1 Assist OWNER in advertising for and obtaining proposals for each separate prime contract for construction, materials, equipment and services to be performed by a contractor for the project (hereinafter called "Work"); and, where applicable, main- tain a record of prospective bidders to whom Contract Documents have been issued, attend pre-bid conferences and receive and process deposits for Contract Documents. City of Coppell, Texas Page 2 10-25-94 1.5.2 Issue addenda as appropriate to interpret, clarify or expand the Contract Documents. 1.5.3 Consult with OWNER to determine the acceptability of substitute materials and equipment proposed by potential contractor(s) when substitution prior to the award of contracts is allowed by the Contract Documents. 1.5.4 Attend the bid opening and prepare bid tabulation sheets. Assist OWNER in evaluating bids or proposals and in assembling and awarding contracts for construction, materials, equipment and services. 1.6 Construction Phase - Administration of the Construction Contract During the Construction Phase ENGINEER shall: 1.6.1 Consult with and advise OWNER as set forth herein and as provided in the ENGINEER's General Conditions and Supplementary General Conditions of the Contract for Construction included in the Contract Documents for the PROJECT. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said Contract Documents shall not be modified, except as ENGINEER may otherwise agree in writing. OWNER shall issue all instructions to the contractor performing the Work (hereinafter called "Contractor") except as otherwise provided in writing. 1.6.2 Make visits to the site at intervals appropriate to the stage of construction, or otherwise agreed to by ENGINEER in writing, to observe the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. However, ENGINEER shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of such on-site observations, ENGINEER shall keep the OWNER informed of the progress and quality of the Work, and shall endeavor to alert the OWNER to defects and deficiencies in the Work of the Contractor. ENGINEER shall not have control or charge of and shall not be responsible for construction means, methods, techniques, sequences, procedures of construction or for safety programs and precautions in connection with the Work. ENGINEER shall not be responsible for the acts or omissions of the Contractor, Subcontractors or any other persons performing any of the Work, or for failure of any of them to carry out the Work in accordance with the Contract Documents. The number of visits shall be limited to fifteen (15) under Basic Services, during the progress of the work. Site visits in excess of that above will be considered Additional Services. 1.6.3 Make recommendations to OWNER concerning the disapproval or rejection of Contractors' Work while it is in progress if ENGINEER believes that such Work will not produce a completed PROJECT that conforms generally to the Contract Documents or that it will prejudice the integrity of the design concept of the PROJECT as reflected in the Contract Documents. ENGINEER shall have access to the Work at all times wherever it is in preparation or progress. City of Coppell, Texas Page 3 10-25-94 1.6.4 Review or take other appropriate action with respect to Shop Drawings, samples and other data which Contractor is 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 or other action shall not include means, methods, techniques, sequences, or procedures of construction or safety programs and precautions incident thereto. 1.6.5 Evaluate and determine the acceptability of substitute materials and equipment proposed by Contractor. 1.6.6 Make recommendations to OWNER regarding the advisability of requiring special inspections or testing of the Work and have authority, for the purposes of this paragraph, to receive and review all certificates of inspections, testings and approvals required by laws, rules, regulations, ordinances, codes, orders or the Contract Documents to determine generally that their content complies with the requirements of, and the results certified indicate compliance with, the Contract Documents. 1.6.7 Act as initial interpreter of the requirements of the Contract Documents, judge the acceptability of the Work and make decisions on all claims of OWNER and Contractor relating to the acceptability of the Work or the interpretat!on 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 Receive and review maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection and tests and approvals of equipment which are to be provided by Contractor in accordance with the Contract Documents. Determine that their content complies with the requirements of the Contract Documents and transmit them to OWNER with written comments. 1.7 Operational Phase After written authorization to proceed with the Operational Phase, ENGINEER shall: 1.7.1 Prepare a set of reproducible record prints of Drawings showing those changes made during the construction process, based on the marked-up prints, drawings and other data furnished by Contractor to ENGINEER. SECTION 2 - ADDITIONAL SERVICES 2.1 General The following Additional Services are not included in the Basic Services. They shall be provided if authorized or confirmed in writing by the OWNER, and shall be paid for by the OWNER as provided in this Agreement, in addition to compensation for Basic Services. City of Coppell, Texas Page 4 10-25-94 2.2 Not part of this Agreement. 2.3 Other Additional Services When required by the Contract Documents, ENGINEER shall perform the following additional services: 2.3.1 Performing 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, reviews of redesigns, 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. This includes those services resulting from the incorporation into ENGINEER's services of the information required by Paragraph 3.2 which is furnished to Engineer after the stated time schedule. 2.3.2 Preparing documents of alternate, separate, or sequential bids or providing extra services in connection with bidding, negotiation or construction prior to the completion of the Final Design Phase, when requested by the OWNER. 2.3.3 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 to proceed with the Work; and providing other special field surveys, except as described in Exhibit A. 2.3.4 Preparing 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, preparing or reviewing environmental impact statements and assessments, reviewing and evaluating the effect on the design requirements of the PROJECT of any such statements and documents prepared by others and assisting in obtaining the approval of authorities having jurisdiction over the PROJECT. 2.3.5 Performing services to make measured drawings of, or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 2.3.6 Providing project scheduling services. 2.3.7 Providing renderings or models for OWNER's use, except as described in Exhibit A. 2.3.8 Preparing documents for alternative proposals requested by OWNER for Contractor's Work which is not executed or documents for out-of-sequence work. City of Coppell, Texas Page 5 10-25-94 2.3.9 Conducting investigations and studies involving, but not limited to, consideration of operations, preventative maintenance programs, and maintenance and overhead expenses; providing value engineering during the course of design; preparing feasibility studies, cash flow and economic evaluations, rate schedules and appraisals; assisting with obtaining financing for the PROJECT; evaluating processes available for licensing and assisting OWNER in obtaining process licensing; performing detailed quantity surveys of material, equipment and labor; and conducting audits or inventories required in connection with construction performed by OWNER. 2.3.10 Furnishing services of independent professional associates and consultants for other than Basic Services. 2.3.11 Assisting the Owner with bid protests, rebidding or renegotiating contracts for construction, materials, equipment or services. 2.3.12 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. 2.3.13 Performing services in connection with work directive changes and change orders to reflect changes requested by OWNER. 2.3.14 Making revisions to Drawings and Specifications arising from OWNER's acceptance of substitutions proposed by Contractor. Performing services after the award of each contract to evaluate and determine the acceptability of additional substitutions proposed by Contractor beyond the listing of acceptable manufacturers in the Specifications. 2.3.15 Performing services resulting from significant delays, changes or price increases occurring as a direct or indirect result of material, equipment or energy shortages. 2.3.16 Performing additional or extended services during construction made necessary by: (1) Work damaged by fire or other cause during construction; (2) a significant amount of defective or neglected work of any Contractor; (3) acceleration of the progress schedule involving services beyond normal working hours; and (4) default by any Contractor; (5) failure of the Contractor to complete the Work within the time stipulated in the Contract Documents; (6) Approval of extensions of the time for performance. 2.3.17 Performing services other than Basic Services during the Operational Phase in connection with any partial utilization of the PROJECT by OWNER prior to Substantial Completion. 2.3.18 Evaluating an unreasonable or extensive number of claims submitted by Contractor or others in connection with the Work. City of Coppell, Texas Page 6 10-25-94 2.3.19 Providing assistance in the closing of any financial or related transaction for the PROJECT. 2.3.20 Providing assistance in connection with the refining and adjusting of any equipment or system. 2.3.21 Performing services required for equipment fit up and connection. 2.3.22 Visiting the PROJECT with OWNER, to observe any apparent defects in the completed construction after acceptance by OWNER and assist OWNER in consulta- tions and discussions with Contractor concerning correction of such deficiencies and make recommendations as to replacement or correction of defective Work. 2.3.23 Performing additional Services in connection with the PROJECT, including services which are to be furnished by OWNER in accordance with Section 3, and services not otherwise provided for in this Agreement. SECTION 3 - OWNER'S RESPONSIBILITIES So as not to delay the services of ENGINEER, OWNER shall do the following in a timely manner: 3.1 Owner's Representative Designate in writing a person to act as OWNER's representative with respect to 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 Existing Data Provide to ENGINEER existing data, plans, reports and other information known to, in possession of, or under control of OWNER which are relevant to the execution of ENGINEER's duties on the PROJECT. Also, provide all criteria and full information as to OWNER's requirements for the PROJECT, including design criteria, objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications. 3.3 Provide Standards Provide within ten (10) days after authorization to proceed, specific OWNER furnished Standard Details, Standard Specifications, or Standard Bidding Documents which are to be incorporated into the PROJECT. The OWNER agrees to bear total responsibility for technical accuracy and content of OWNER-furnished documents. City of Coppell, Texas Page 7 10-25-94 3.4 Provide Soils and Geotechnical Engineering Furnish the services of soils and geotechnical engineers or other consultants when such services are deemed necessary by ENGINEER. Such services shall include without limitation, borings, probings and subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment, with reports and appropriate professional recommendations. 3.5 Provide Land Surveys Provide land surveys to include property, boundary, easement, right-of-way, topographic and utility surveys, property descriptions, zoning, deed or Other land use restrictions. 3.6 Provide Access Arrange for access to, and make all provisions for, ENGINEER or ENGINEER's Subconsultants to enter upon public and private property as required for ENGINEER and ENGINEER's Subconsultants to perform services under this Agreement. 3.7 Examine Documents 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 Provide Environmental Studies Provide, if necessary, Environmental Assessments, or Environmental Impact Statements related to the PROJECT. Furnish approvals and permits from all governmental authorities having jurisdiction over the PROJECT and approvals and consents from others as may be necessary for completion of the PROJECT. 3.9 Provide Accounting and Other Services Provide accounting, independent cost estimating and insurance counseling services as may be required for the PROJECT, 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, 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 inspection services as OWNER may require to ascertain that Contractor is complying with any laws, rules, regulations, ordinances, codes or orders applicable to his furnishing and performing the Work. City of Coppell, Texas Page, 8 10-25-94 3.10 Provide Advertising Advertise for proposals from bidders, open the proposals at an appointed time and place, and pay for all costs incidental thereto. 3.11 Provide Prompt Notice Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of any condition that affects the scope or timing of ENGINEER's services, or any defect or nonconformance in the Work of any Contractor. 3.12 Approvals and Decisions At no cost to ENGINEER, provide the above data and services and shall render approvals and decisions as is necessary for the orderly progress of ENGINEER's services. ENGINEER shall be entitled to rely upon the accuracy and completeness of all information and services provided by OWNER or at OWNER's direction. SECTION 4 - PERIODS OF SERVICE 4.1 Generally The rates of compensation for ENGINEER's services provided for in this Agreement have been arrived at in anticipation of the orderly and continuous progress of the PROJECTthrough completion of the Services contained herein. ENGINEER°s obligation to render services hereunder will extend for a period which may reasonably be required for the performance of ENGINEER's services and any required extensions thereto. If specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided, and if such dates are exceeded through no fault of ENGINEER, all rates, measures and amounts of compensation provided herein shall be subject to equitable adjustment. 4.2 Period of Service for Each Phase Each phase of services as outlined in SECTION I will be completed and submitted within the stipulated period indicated, after written authorization to proceed with that phase of services. 4.2.1 Not part of this Agreement. 4.2.2 Preliminary Design Phase - Sixty (60) calendar days. 4.2.3 Design Phase (Final) - Thirty (30) calendar days. 4.3 Completion of Services City of Coppell, Texas Page 9 10-25-94 ENGINEER's services under each Phase shall 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. In each case, such additional time as may be considered reasonable for obtaining approval of governmental authorities having jurisdiction to approve the design of the PROJECT shall be added to that particular Phase. 4.4 Bidding (or Negotiating) Phase After acceptance by OWNER of ENGINEER's Drawings, Specifications and other Design Phase documentation, including the most recent Opinion of Probable Construction Costs, and upon written authorization to proceed, ENGINEER shall proceed with performance of the services called for in the Bidding (or Negotiating) 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 negotiations with a prospective Contractor. 4.5 Construction Phase The Construction Phase-Administration of the Construction Project will commence with award of the Contract for Construction and, together with ENGINEER's obligation to provide Basic Services under this Agreement, will terminate when final payment to the Contractor is due, or in the absence of a final application for payment or of such due date, thirty days after the Date of Satisfactory Start-up and Demonstration of the Contract for Construction, whichever occurs first, or as otherwise mutually agreed. 4.6 Operational Phase The Operational Phase will commence during the Construction Phase and will terminate forty-five (45) days after the Date of Satisfactory Start-up and Demonstration of the Contract for Construction. 4.7 Changes If OWNER requests significant modifications or changes in the general scope, extent or character of the PROJECT, the time of performance of ENGINEER's services and the various rates of compensation shall be adjusted equitably. 4.8 Prompt Authorization to Proceed If OWNER fails to give prompt written authorization to proceed with any Phase of services after completion of the immediately preceding phase, or if the Construction Phase has not commenced within ninety days of the Bidding or Negotiating Phase, ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement. City of Coppell, Texas Page 10 10-25-94 4.9 Delay If ENGINEER's design services or service during construction of the PROJECT are delayed or suspended in whole or in part by OWNER for more than ninety days for reasons beyond ENGINEER's control, ENGINEER shall on written demand to OWNER (but without termination of this Agreement) be paid as provided in paragraph 5.5.2. If such delay or suspension extends for more than one year for reasons beyond ENGINEER's control, or if ENGINEER for any reason is required to render services for more than one year after Satisfactory Start-up and Demonstration is achieved under that contract, the various rates of compensation, including Additional Services, provided for elsewhere in this Agreement shall be subject to equitable adjustment. SECTION 5 - PAYMENTS TO ENGINEER 5.1 Payment Terms Defined 5.1.1 Payroll CoSt Payroll Cost shall mean the salary and wages at the time services are performed of all personnel engaged directly on the PROJECT, including, but not limited to, engineers, architects, scientists, surveyors, designers, draftsmen, specification writers, estimators, steno, clerical, accounting and other technical and business personnel; plus the cost of customary and statutory benefits including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, sick leave, vacation, holiday pay and other group employee benefits. For the purposes of this Agreement, the Payroll Cost is equal to Direct Labor Costs, multiplied by a factor of 1.372. 5.1.2 Per Diem Per Diem shall mean an hourly rate equal to Payroll Cost/Direct Labor Cost times an Overhead Multiplier of 2.3 to be paid to ENGINEER as total compensation for each hour an employee of ENGINEER works on the PROJECT. Reimbursable Expenses will be paid in addition to ENGINEER'S Per Diem compensation. 5.1.3 Reimbursable Expenses Reimbursable Expenses shall mean the actual expenses incurred directly or indirectly in connection with the PROJECT, including, but not limited to Subconsultant or Subcontractor costs, transportation and subsistence incidental thereto, obtaining bids or proposals from Contractor(s), providing and maintaining field office facilities, including furnishings and utilities, subsistence and transportation of Resident Project Representatives and their assistants, toll telephone calls, express mail and telegrams, reproduction of reports, drawings, specifications, bidding documents, and similar PROJECT-related items in addition to those required under Section 1, and, if authorized in advance by the OWNER, overtime work requiring higher than regular City of Coppell, Texas Page 11 10-25-94 rates. In addition, Reimbursable Expenses will also include expenses incurred for computer time and other highly specialized equipment, including an appropriate charge for previously established programs and expenses of photographic production techniques. Reimbursable Expenses will include a 10% markup over ENGINEER's cost. 5.1.4 Lump Sum Lump Sum shall mean a fixed amount .agreed upon in advance, subject to modifications and amendments, for services rendered. 5.2 Basis and Amount of Compensation for Basic Services 5.2.1 Basic Services, Preliminary Design, Final Design, Bidding, Construction, and Operational Phases. Compensation shall be on the basis of Lump Sum. The amount shall be the Lump Sum of dollars ($ ). 5.3 Basis and Amount of Compensation for Additional Services Compensation for Additional Services shall be on the basis of Per Diem or Lump Sum to be agreed upon at time of request for Additional Services. An estimate of the fee for Additional Services will be made at the time the Additional Services are requested. 5.4 Intervals of Payments Under Lump Sum Basis of Payment 5.4.1 Payments to ENGINEER for Basic and Additional Services rendered and Reimbursable Expenses incurred shall be made once every month by OWNER. ENGINEER's invoices will be submitted once every month and will be based upon total services completed at the time of invoices. OWNER shall promptly pay ENGINEER's invoices. 5.4.2 The OWNER shall pay for phases of Basic Services in accordance with the following schedule: Percentage of Phase (Description) Compensation Due Preliminary Design Phase Final Design Phase Construction Phase 5.4.3 Upon conclusion of each phase of Basic Services, OWNER shall pay such additional amount, if any, as may be necessary to bring total compensation paid on account of such phase to the following percentages of total compensation payable for all phases of Basic Services: City of Coppell, Texas Page 12 10-25-94 5.4.4 Payments for Additional Services rendered and Reimbursable Expenses incurred shall be made once every month. ENGINEER's invoices will be submitted once every month and will be based upon total services completed at the time of billing. OWNER shall make promptly pay ENGINEER's invoices. 5.5 Other Provisions Concerning Payments 5.5.1 If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's statement, the amounts due ENGINEER will be increased at the rate of 1-1/2% per month from date of invoice, and in addition, ENGINEER may, after giving seven days' written notice to OWNER, suspend services under this Agreement until ENGINEER has been paid in full all amounts due for services, expenses and charges. 5.5.2 If the PROJECT is suspended or abandoned in whole or in part for more than 30 days, ENGINEER shall be compensated for all services performed prior to receipt of written notice from the OWNER of such suspension or abandonment, together with Reimbursable Expenses then due. If the PROJECT is resumed after being suspended for more than 30 days, ENGINEER's compensation shall be equitably adjusted. 5.5.3 Services performed by ENGINEER at request of OWNER between the completion of one phase and the start of the next phase or during periods when the PROJECT is suspended shall be considered Additional Services. 5.5.4 If and to the extent that the Contract Time initially established in the Contract for Construction is exceeded or extended through no fault of ENGINEER, compensation for any Basic Services required during such extended period of Administration of the Construction Contract shall be computed as set forth in Paragraph 2.3.16 for Additional Services. 5.5.5 OWNER may temporarily delete any disputed items contained in Engineer's invoice, including items disputed due to lack of supporting documentation, and pay the remaining amount of the invoice. OWNER shall promptly notify ENGINEER of the dispute and request clarification and/or remedial action. After any dispute has been settled, ENGINEER shall include the disputed item on a subsequent regularly scheduled invoice or on a special invoice for the disputed item only. 5.5.6 In the event of termination of this Agreement by either OWNER or ENGINEER, as provided in Section 7.2, ENGINEER shall be entitled to payment for Services up to the time of termination, plus termination expenses. Termination expenses shall include labor, reimbursable expenses directly attributed to termination, and direct expenses associated with mobilization and demobilization of ENGINEER's personnel and facilities and any other costs incurred by Engineer not otherwise reimbursed. City of Coppell, Texas Page 13 10-25-94 5.5.7 The amount of any sales tax, excise tax, value added tax (VAT), or gross receipts tax that may be imposed on this Agreement shall be added to the ENGINEER's compensation as reimbursable expenses. 5.5.8 Whenever a factor is applied to Payroll Costs for determining compensation payable to ENGINEER, that factor will be adjusted periodically and equitably to reflect changes in the various elements that comprise such factor. All such adjustments will be in accordance with generally accepted accounting principles as applied on a consistent basis by ENGINEER and consistent with ENGINEER's overall compensation practices and procedures. SECTION 6 - CONSTRUCTION COST AND OPINIONS OF COST 6.1 Construction Cost 6.1.1 The construction cost of the entire PROJECT (herein referred to as "Construction Cost") means the total cost to OWNER of those portions of the entire PROJECT designed and specified by ENGINEER, but not including ENGINEER's compensation and expenses, the cost of land, rights-of-way, or compensation for, or damages to properties unless this Agreement so specifies, nor will it include OWNER's legal, accounting, insurance counseling or auditing services, interest and finance charges incurred in connection with the PROJECT, or the cost of other services to be provided by others to OWNER. 6.1.2 If, as a result of any negligent acts, errors, or omissions, for which ENGINEER has legal responsibility, the OWNER incurs an accumulation of excess costs over two (2) percent of the actual project construction costs, ENGINEER shall bear the burden of such accumulation of excess cost over two (2) percent; provided said accumulation of excess costs shall not include any improvement costs or betterment costs and shall not exceed the difference between (1) the actual construction costs resulting from such negligent acts, errors, or omissions of ENGINEER; and (2) an estimate of what such costs would have been at the time of the signing of the construction contract. ENGINEER shall have no liability for any such excess costs which are less than two (2) percent of the actual project construction cost. 6.2 Opinions of Probable Construction Cost 6.2.1 Since ENGINEER has no control over the cost of labor, materials, equipment or services furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER's Opinions of Probable Construction Cost provided for herein are to be made on the basis of ENGINEER's experience and qualifications and represent ENGINEER's judgment performed in a manner consistent with that level of care and skill ordinarily exercised by other professional consultants under similar circumstances who are familiar with the construction industry. Therefore, ENGINEER cannot and does not guarantee that proposals or actual Total Project or Construction Costs will not vary from Opinions of City of Coppell, Texas Page 14 10-25-94 Probable Construction Costs prepared by ENGINEER. If, prior to the Bidding or Negotiating Phase, OWNER wishes greater assurance as to Total Project or Construction Costs, OWNER shall employ an independent cost estimator. SECTION 7 - GENERAL CONSIDERATIONS 7.1 Standard of Care ENGINEER shall perform all services under this Agreement in a manner which is consistent with generally accepted standards of professional engineering practice. 7.2 Termination 7.2.1 This Agreement may be terminated in writing by either party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party. However, no termination for default may be initiated unless the other party is given a ten (10) calendar day period to correct any alleged failure after written notice (delivery by certified mail, return receipt requested) of intent to terminate. 7.2.2 This Agreement may be terminated in writing (delivered by certified mail, return receipt requested) by OWNER for its convenience. 7.2.3 Upon any termination, ENGINEER shall: (1) promptly discontinue all Services affected (unless a termination notice from OWNER directs otherwise); and (2) upon full payment for services, deliver or otherwise make available to OWNER all documents, data, drawings, specifications, reports, estimates, summaries, and such other information and materials as may have been accumulated by ENGINEER in performing this Agreement, whether completed or in process. All payments due ENGINEER at termination shall be made as provided in paragraph 5.5.6. 7.3 Reuse of Documents 7.3.1 All documents, including Drawings and Specifications prepared or furnished by ENGINEER pursuant to this Agreement, are instruments of service with respect to the PROJECT and ENGINEER shall retain an ownership and property interest therein whether or not the PROJECT is completed. OWNER may make and retain copies for information and reference in connection with the use and occupancy of the PROJECT by OWNER and others; however, such documents are not intended or represented to be suitable for reuse by OWNER or others on extensions of the PROJECT or on any other PROJECT. Any reuse without written verification or adaptation by ENGINEER for the specific purpose intended will be at OWNER's sole risk and without liability or legal exposure to ENGINEER, and OWNER shall defend, indemnify and hold harmless ENGINEER from all claims, damages, losses and expenses including attorneys' fees City of Coppell, Texas Page 15 10-25-94 arising out of or resulting therefrom. Any such verification or adaptation will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 7.3.2 OWNER will be permitted to retain copies of drawings and specifications prepared in CADD form for the OWNER's information in its use of the PROJECT. Because information contained on computer discs and/or magnetic tapes can be unintentionally or otherwise modified by others besides ENGINEER, ENGINEER reserves the right to remove all indicia of ownership and/or involvement from the disc/magnetic tape provided to OWNER. The original CADD data will be retained by ENGINEER. In addition, the information set forth on the disc/magnetic tape shall not be used by OWNER on other projects, for additions to this project, or for completion of this project by another design professional, except by written agreement and with appropriate compensation to ENGINEER. Any such use or re-use by OWNER or others without written verification or CADD adaptation by ENGINEER for the specific purpose intended will be at the user's sole risk and without liability or legal exposure to ENGINEER. OWNER shall, to the fullest extent permitted by law, defend, indemnify and hold harmless ENGINEER from all claims, damages, losses, and expenses, including attorney's fees arising out of or resulting therefrom. Any such verification or adaptation will entitle ENGINEER to further compensation at rates to be mutually agreed upon by OWNER and ENGINEER. 7.4 Engineer's Liability ENGINEER shall, without additional compensation, correct or revise any errors or deficiencies in the final designs, drawings, specifications and other services ENGINEER performs hereunder. ENGINEER shall not be responsible for corrective construction or repair work, and shall have no other liability to OWNER for defective services, including without limitation, liability for any claim for consequential damages, loss of use or loss of profits incurred by OWNER regardless of whether such claim is based upon alleged breach of contract, willful misconduct or negligent act or omission, whether professional or non-professional, of ENGINEER or its employees, agents, or subcontractors. 7.5 Insurance 7.5.1 ENGINEER shall procure and maintain insurance for protection from claims under workers' compensation acts, employer's liability claims, claims for damages because of bodily injury, including personal injury, sickness or disease or death of any and all employees, or of any person other than such employees, and from claims or damages because of injury to or destruction of property, including loss of use resulting therefrom. City of Coppell, Texas Page 16 10-25-94 7.6 Controlling Law This Agreement is to be governed by and construed in accordance with the laws of the State of Nebraska. 7.7 Successors and Assigns 7.7.1 The parties hereby bind their respective partners, successors, executors, administrators, legal representatives and, to the extent permitted by paragraph 7.7.2., their assigns, to the terms, conditions and covenants of this Agreement. 7.7.2 Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in this Agreement (including, but without limitation, monies that may become due or monies that are due) without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. 7.7.3 Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent ENGINEER from employing such independent professional associates, subcontractors and consultants as ENGINEER may deem appropriate to assist in the performance of Services. 7.7.4 Except as may be expressly stated otherwise in this Agreement, 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. 7.8 Not part of this Agreement. 7.9 Equal Employment and Nondiscrimination In connection with the Services under this Agreement, ENGINEER agrees to comply with the applicable provisions of State and Federal Equal Opportunity statutes and regulations. 7.10 Indemnification 7.10.1 ENGINEER hereby states, and the OWNER acknowledges, that neither ENGINEER nor ENGINEER's consultants have any professional liability (errors and omissions) or other insurance covering asbestos or pollution claims, that is, insurance for claims or claims expenses arising out of the performance of or failure to perform professional services, including, but not limited, to the preparation of reports, designs, drawings and specifications, related to the investigation, detection, abatement, City of Coppell, Texas Page 17 10-25-94 replacement or removal of parts, materials or processes containing asbestos or relating to the actual, alleged or threatened discharge, dispersal, release or escape of pollutants (defined herein as any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste), nor are ENGINEER or ENGINEER's consultants reasonably able to obtain such coverage. Accordingly, OWNER hereby agrees to bring no claim for negligence, breach of contract, indemnity or otherwise against ENGINEER, its principles, employees, agents and consultants if such claim in any way would relate to asbestos or pollutants in the PROJECT. OWNER further agrees to the fullest extent permitted by law to defend, indemnify and hold harmless ENGINEER, its principles, employees, agents and consultants from and against all claims, damages losses and expenses, direct or indirect, or consequential damages, including, but not limited to, fees and charges of attorneys and court and arbitration costs, arising out of or resulting from the performance of ENGINEER's services hereunder, or claims against ENGINEER brought by third parties arising from ENGINEER's services or the services and/or work of others, that is related to asbestos and/or pollutant activities. 7.11 Construction Procedures ENGINEER shall not specify construction or service-related procedures and shall not manage, supervise, control or have charge of construction, nor shall ENGINEER implement or be responsible for health or safety procedures. ENGINEER shall not be responsible for the acts or omissions of contractors or other parties on the PROJECT and shall not be responsible for construction means, methods, techniques, sequences, or procedures, nor safety precautions or programs. ENGINEER's monitoring or review of portions of the Work performed under construction contracts shall not relieve the Contractor from its responsibility for performing the Work in accordance with applicable contract documents. 7.12 Not part of this Agreement. 7.13 Changes and Modifications The parties agree that no change or modification to this Agreement, or any attachments hereto, shall have any force or effect unless the change is reduced to writing, dated, and made a part of this Agreement. The execution of the change shall be authorized and signed in the same manner as this Agreement. 7.14 Severability and Waiver In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall continue to be valid and binding upon the parties. One or more waivers by either party of any provision, term, condition or covenant shall not be construed as a waiver of a subsequent breach of the same by the other party. 7.15 Extent of Agreement City of Coppell, Texas Page 18 10-25-94 This Agreement, including all Exhibits, and any and all amendments, modifications, and supplements duly executed by the parties in accordance with this Agreement, govern and supersede any and ali inconsistent or contradictory terms, prior oral or written representations or understandings, conditions or provisions set forth in any purchase orders, requisition, request for proposal, authorization of services, notice to proceed or other form or document issued by OWNER with respect to the PROJECT or ENGINEER's services. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. CITY OF COPPELL, TEXAS "OWNER" By: Name: Title: Witness: Address: Approved By: HDR ENGINEERING, INC. "ENGINEER" By: Name: William B. Hagood, P.E. Title: Senior Vice President Address: 12700 Hillcrest Road, Suite 125 Dallas, Texas 75230-2096 HDR ENGINEERING, INC. City of Coppell, Texas Page 19 10-25-94 APPENDIX EXHIBIT A - DETAILED SCOPE OF BASIC SERVICES This exhibit expands the Scope of Services described in SECTION I BASIC SERVICES of the Agreement for the PROJECT known as Sanitary Sewer Improvements, Project No. SS9402 Grapevine Creek III, IV and Bethel Road. BASIC SERVICES ENGINEER will provide Basic Services which consist of consulting services in connection with the following phases: PRELIMINARY DESIGN AND FINAL DESIGN PHASES Services to be provided during design: A. Prepare plans and specifications for construction of approximately 15,000 LF of sanitary sewers ranging from 10 inches to 15 inches .in diameter. Sizes to be as set forth in Owner's Sewer System Master Plan. Scale of plan and profile sheets to be I IN = 20 FT. B. Provide following: 1. Two sets of preliminary plans and specifications for Owner review. 2. Two sets of final plans and specifications for final Owner review. 3. Two sets of plans and specifications for TNRCC review. 4. Mylar originals. 5. Diskette with AutoCAD files, if CAD drawings are prepared. BIDDING PHASE Services to be included during bidding: A. Provide twenty-five sets of plans and specifications. B. Answer Owner's questions. C. Prepare addenda, if required. D. Attend bid opening. E. Prepare bid tabulation sheets. CONSTRUCTION PHASE Services to be included during construction: A. Preconstruction conference: 1. Prepare agenda. 2. Attend preconstruction conference. 3. Prepare minutes of the meeting. B. Review of shop drawing submittals. C. Weekly site visits (maximum of 15 visits). D. Preparation of As-recorded drawings incorporating Contractor to Owner's Inspector. information provided by ITEMS NOT INCLUDED IN BASIC SERVICES: A. Traffic Control Plan. B. Public Meetings. C. Analyses regarding required capacities of sewers. D. Geotechnical engineering services. E. Easement descriptions. F. Boundary surveys. G. Owner will obtain permission to enter private property for surveying, if required. H. Trench safety plans. I. Storm water pollution prevention plans. J. Meetings with TNRCC. K. Distribution of plans and specifications. ITEMS NOT INCLUDED IN CONSTRUCTION PHASE A. Contractor's payment applications. B. Certificate of substantial completion. C. Soils testing and geotechnical engineering services. ADDITIONAL SERVICES: A. Provide surveying services to obtain topographic maps along sewer routes as follows: 1. Area between back of curb and Right-of-way line along one side of Denton Tap and Belt Line Road. 2. 60 FT wide strip along Bethel Road. 3. 50 FT wide strip along sewer routes in other areas. 0 WNER PRO VIDED SERVICES: A. Arrange for geotechnical services to obtain soil borings approximately every 500 feet and prepare report. B. Arrange for soils and geotechnical engineering services during construction.