The URL can be used to link to this page

Home My WebLink About1998-05-18 Special Called Regular Meeting of City Council . e e . ORIGINAL MINUTES OF THE SPECIAL CALLED REGULAR MEETING OF LA PORTE CITY COUNCIL MAY 18, 1998 1. CALL, TO ORDER The meeting was called to order by Mayor Norman L. Malone at 6:00 p.m. Members of City Council Present: . Mayor Norman L. Malone, Councilpersons Guy Sutherland, Chuck Engelken, Howard Ebow, Alton Porter, Deotis Gay, Charlie Young and Jerry Clarke. Members of Council Absent: Bob McLaughlin. Members of City Executive Staff and City Employees Present: City Manager Robert T. Herrera, Assistant City Manager John Joerns, Assistant City Manager Jeff Litchfield, City Attorney Knox Askins, Police Chief Bobby Powell, Public Works Director, Steve Gillett, City Secretary Martha Gillett, Planning Director Guy Rankin, City Engineer Doug Kneupper, Assistant Finance Director Cynthia Alexander, City Manager's Secretary Carol Buttler, Director of Administrative Services Louis Rigby, Receptionist Sharon Moblo and Secretary Crystal Scott. Others Present: Spero Pomonis, Reverend David Cochran, Lou Lawler, Gordon Westergren, Fred Westergren, Charlie Perry and a number of La Porte Citizens. 2. INVOCA TION - REVEREND DAVID COCHRAN - LA PORTE WORSHIP CENTER Reverend David Cochran delivered the invocation. 3. CONSIDER APPROVING MINUTES OF SPECIAL CALLED REGULAR MEETING ON MAY 5, 1998. Motion was made by Councilperson Sutherland to approve the minutes of May 5. 1998 meeting as presented. Second by Councilperson Engelken. The motion carried, 8 ayes and 0 nays. Ayes: Councilpersons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Norman L. Malone. Nays: : None e e City Council Minutes - May 18, 1998 Page 2 4. CONSIDER APPROVING MINUTES OF A SPECIAL CALLED REGULAR AND WORKSHOP MEETING ON MAY 11, 1998 Motion was made by Councilperson Engelken to approve the minutes of May 11. 1998 meeting as presented. Second by Councilperson Sutherland. The motion carried, 7 ayes, 0 nays and 1 abstain. Ayes: Councilpersons Sutherland, Engelken, Porter, Gay, Young, Clarke and Mayor Norman L. Malone. Nays: None Abstain: Ebow 5. PROCLAMA TIONS: A. MARCH FOR JESUS Mayor Malone presented the proclamation to Sarah Urich, March for Jesus Chairman and a group of Ministers. B. NA TIONAL PUBLIC WORKS WEEK Mayor Malone presented the proclamation to Public Works Director Steve Gillett. 6. PETITIONS, REMONSTRANCES, COMMUNICATIONS, AND CITIZENS AND TAXPAYERS WISHING TO ADDRESS COUNCIL Councilperson Deotis Gay, 214 N. Ninth St., La Porte, Texas, addressed the Counci.l to thank those citizens who were attending the meeting in support of Planning Director Guy Rankin. He announced that Mr. Rankin is not resigning his position with the City of La Porte. Margaret Lindsey, 1026 S. 8th Street, La Porte, Texas, addressed the Council regarding her business which is on the dangerous buildings demolition list. Ms. Lindsey informed Council she was speaking to Council as advised by her Attorney. She further explained to Council that Mr. Rankin and Debbie Wilmore would not talk to her about this matter and she needed some direction from the City in order to resolve her problems. Ms. Gillett advised her the agenda had been changed and she would be receiving a letter from Inspections. e e City Council Minutes - May 18, 1998 Page 3 Rick Williams, 616 N. Shady Lane, La Porte, Texas, addressed the Council regarding his concession bid. He advised Council he was a local vendor and would like to see the City consider his bid. 7. CONSIDER APPROVAL OR OTHER ACTION REGARDING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND HARRIS COUNTY HOUSING AND COMMUNITY DEVEWPMENT AGENCY - G. Rankin Planning Director Guy Rankin presented summary and recommendation to City Council. Mr. Rankin informed Council the City submitted a grant application to Harris County Housing and Community Development Agency requesting funds for the Renovation and Construction of the Northside Park Playground Addition project, which includes renovations to the Jenny Riley Recreation Center. Harris County Commissioners Court approved $100,800 in Community Development Block Grant (CDBG) money for this project. Included in this grant are costs for engineering and construction contingencies as well as for the county's administration of the grant. The City accepted this grant award and agreed to match the grant by the renovation of the Jennie Riley Center and by the development of a new community park. Staff is requesting City Council accept the formal agreement between the City of La Porte and Harris County. Once this agreement is approved by Harris County Commissioners Court, actual construction may begin within approximately thirty (30) days of approval. Motion was made by Councilperson Porter to approve this Agreement as presented. Second by Council person Gay. The motion carried, 8 ayes, 0 nays. Ayes: Councilpersons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone. Nays: None 8. CONSIDER APPRO V AL OR OTHER ACTION REGARDING A RESO:LUTION AUTHORIZING PUBLICATION OF NOTICE OF INTENTION TO ISSUE REVENUE BONDS (Res. 98-06) J. Litchfield e e City Council Minutes May 18, 1998 - Page 4 Motion was made by Council person Ebow to approve this Resolution as presented. Second by Councilperson Gay. The motion carried, 8 ayes, 0 nays. City Attorney Knox Askins read: RESOLUTION 98-06 - A RESOLUTION AUTHROZING PUBLICATION OF NOTICE OF INTENTION TO ISSUE REVENUE BONDS. Ayes: CounciJpersons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone. Nays: None 9. CONSIDER AUTHORIZING THE CITY MANAGER TO EXECUTE A UTILITY EXTENSION AGREEMENT WITH THE DEVELOPER OF THE SA YOU FOREST APARTMENTS-G. Rankin Planning Director Guy Rankin presented summary and recommendation. Mr. Rankin recommended Council consider authorizing the City Manager to execute a Utility Extension Agreement with the Developer of the Bayou Forest Apartments. Mr. Rankin informed Council that under this agreement, the City will receive a maximum payment of $119,500 from the Developer for sewer service.. One-half this amount will be paid to the City when the Developer is issued a building permit for his apartment project. The other one-half payment will be made when the City begins construction of the sewer facilities. Motion was made by Councilperson Sutherland to approve this Agreement as presented. Second by Councilperson Engelken. The motion carried, 8 ayes, 0 nays. Ayes: Council persons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone. Nays: None 10. CONSIDER APPROVAL OR OTHER ACTION REGARDING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND TURNER, COLLIE AND BRADEN, .INC., TO PROVIDE PROFESSIONAL ENGI~EERING SERVICES FOR FINAL DESIGN AND CONStRUCTION CONTRACT DOCUMENTS OF SANITARY SEWER FACILITIES; APPROPRIATING NOT TO EXCEED $146,000.00 TO FUND SAID CONTRACT (Res. 98-2237) - J. Joerns Assistant City Manager John Joerns informed Council that City Engineer Doug Kneupper would present the summary and recommendation. Mr. Kneupper recommended City Council approve an Ordinance authorizing the City Manager e e City Council Minutes - May 18, 1998 - Page 5 to execute an Agreement Between Owner and Engineer for Professional Services with Turner, Collie and Braden, Inc. to provide funding for engineering services for the final design and construction documents for sanitary sewer facilities and also provide construction inspection services if authorized. City Attorney read: ORDINANCE 98-2237 - AN ORDINANCE APPROVING AND AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND TURNER, COLLIE AND BRADEN, INC., TO PROVIDE PROFESSIONAL ENGINEERING SERVICES FOR FINAL DESIGN AND CONSTRUCTION CONTRACT DOCUMENTS OF SANITARY SEWER FACILITIES; APPROPRIATING NOT TO EXCEED $146,000.00 TO FUND SAID CONTRACT; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Councilperson Clarke to approve this Ordinance as read by the City Attorney. Second by Council person Gay. The motion carried, 8 ayes, o nays. Ayes: CounciJpersons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone. Nays: None 11. CONSIDER APPROVAL OR OTHER ACTION AWARDING CONTRACT FOR CONCESSIONS AT BAY FOREST GOLF COURSE TO KEVIN O'BRIEN FOR 25% OF GROSS SALES - A. Osmand Golf Pro Alex Osmand presented summary and recommendation. Mr. Osmand recommended Council award contract for concessions at Bay Forest Golf Course to Kevin O'Brien for 25% of gross sales. This will be a three (3) year contract with an option to renew for an additional two (2) years. Motion was made by Council person Engelken to award this contract as recommended by staff. Second by Councilperson Gay. The motion carried, 8 ayes, 0 nays. Ayes: Councilpersons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone. Nays: None e e City Council Minutes - May 18, 1998 - Page 6 12. CONSIDER APPROVAL OR OTHER ACTION REGARDING AN INTERLOCAL AGREEMENT WITH HGAC TO PURCHASE 105,281 LBS. OF PLASTIC GARBAGE BAGS AT $0.402 PER POUND, PLUS ADMINISTRATIVE FEE, FOR A TOTAL COST OF $43,137.80 - S. Gillett Motion was made by Council person Ebow to approve this Interlocal Agreement as presented. Second by Councilperson Engelken. The motion carried, 8 ayes, o nays. Ayes: Council persons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone. Nays: None 13. ADMINISTRA TIVE REPORTS City Manager Robert T. Herrera reminded Council there will be a Special Called Council meeting on June 2, 1998. Mr. Herrera reminded Council of the Run-Off Election on May 30, 1998. Mr. Herrera informed Council that Mr. Rankin came by his office this morning and asked if he could withdraw his letter of resignation. Mr. Herrera informed Council he had agreed to that and passed the information on as Councilman Gay has alrr.ady read. Lastly, Mr. Herrera announced there will be an LEPC Drill tomorrow afternoon at the Fire Station. 14. COUNCIL ACTION Council persons Sutherland, Engelken, Ebow, Porter, Gay, Young, Clarke and Mayor Malone brought items to Council's attention. 15. EXECUTIVE SESSION - PURSUANT TO PROVISION OF THE OPEN MEETlNGS LAW, CHAPfER 551.0"71 THROUGH 551.076, AND 551.084, TEXAS GOVERNMENT CODE, - (CONSULTATION WITH ATTORNEY, DELIBERATION REGARDING REAL PROPERTY, DELIBERATION REGARDING PROSPECTIVE GIFT OR DONATION, PERSONNEL MATTERS, CONFERENCE WITH EMPLOYEES DELIBERA TION REGARDING SECURITY DEVICES, OR e e City Council Minutes-May 18, 1998-Page 7 EXCLUDING A WITNESS DURING EXAMINATION OF ANOTHER WITNESS IN AN INVESTIGATION) A. SECTION 551.075 - (PERSONNEL MATTERS) MEET WITH CITY MANAGER ON PERSONNEL MATTERS Council retired into executive session at 6:52 p.m. under Section 551.075 (PERSONNEL MA TIERS), Meet with City Manager on personnel matters. Council returned to the table at 7:30 p.m., with no action taken. 16. CONSIDERA TION AND POSSIBLE ACTION ON ITEMS CONSIDERED IN EXECUTIVE SESSION There was no action taken on Executive Session item. 17. ADJOURNMENT There being no further business to collie before Council, the Regular Meeting was duly adjourned at 7:32 p. m. Respectfully submitted, . LfVIrWJ~o. JI~ Martha A. Gillett City Secretary Passed and approved on this 2nd day of June, 1998. ~?~:-::~ e -e -. " e e REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: May 18. 1998 Requested By: Guy Rankin Department: Planning xxx Report __ Resolution Ordinance Exhibits: 1. Agreement Between the City of La Porte and Harris County to Receive Grant Funds 2. Letter of Grant Funds Award from Harris County Housing and Community Development Agency 3. Letter of Acceptance of Grant Funds from City of La Porte SUMl\1ARY & RECOMMENDA nON The City of La Porte submitted a grant application to Harris County Housing and Community Development Agency requesting funds for the Renovation and Construction of the Northside Park Playground Addition project, which includes renovations to the Jennie Riley Recreation Center. Harris County Commissioners Court approved $100,800 in Community Development Block Grant (CDBG) money for this project. Included in this grant are costs for engineering and construction contingencies as well as for the county's administration ofthe grant. The City accepted this grant award and agreed to match the grant by the renovation of the Jennie Riley Center and by the development of a new community park. Staff is requesting City Council accept the formal agreement between the City of La Porte and the Harris County. Once this agreement is approved by Harris County Commissioners Court, actual construction may begin within approximately thirty (30) days of approval. Action Required by Council: Accept the agreement witli Harris County to receive CDBG funds for the Northside Park project. Availability of Funds: General Fund .WaterlWastewater _ Capital Improvement--.. General Revenue Sharing Other Account Number: ~_ Funds Available: _ YES _ NO HARRIS !UNIYHOUSING AND CO~DEVELOPMENT AGENcY. noo 11mmons lome . Suite 220 . Houston. Texas 11027-5925 Community Development (113) 626-5651 . ReNbUilation (113) 840-8122 . Assisted Housing (713) 626-0917 . fu (713) 963-9146 .~ I ~ ~r~~1 - ROBEKI' ECKELS, County Judge BRUCE A. AUSI1N, Director July 2, 1997 Mr. Robert T. Herrera City Manager City of LaPorte P.O. Box 1115 LaPorte, 1]( 77572-1115 Attn: John Joerns Dear Mr. Herrera: We are pleased to inform you that on June 3, 1997, the Harris County Commissioners Court approved the allocation of $100,800 in CDBG funds for the Renovation and Construction of Northside Park Playground Addition project. Please note that this amount includes the engineering, construction contingency and county administration costs. . .' '.q You are-requested to'resporia iIioWiitfug by Frid~y;Jui"?18, 1997, stating your fmn commitment to accept this award and make $70,000 in._ matching funds available for this project. After this response is received, we will prepare a contract for this program to be approved by Commissioners Court, describing the terms of this award. This year, we have decided to include a listing of our 1997 subrecipients to our Agency's Internet Home Page. Please provide the following information when you submit your letter of interest: your organization's letter head, mission, contact person, phone number and a brief description oftrus project. If you have any questions concerning your award, please call Elizabeth Rodriguez at this office. . Thank you for continuing interest in the Harris County CDBG Program. BAA:as S :\drh i\1r\97 award 96-100.109 e City of La Porte Established 1892 July 18) 1997 Bruce A. Austin Director Harris County Housing and Commnnity Development Agency 3100 Timmons Lane, Suite 220 Houston, TX 77027-5925 Dear Mr. Austin: It brings us great pleasure to learn that Harris CountyCommi~sioner)s Court has approved CDBG funds in the amount of $100)800 for the Renovation and ConstnJct:ion of Northside Park Playground Addition project. As stated in our application, the City of La Porte is committed to m:aking $70)000 in other improvements) i.e.1and acquisition) design and renovation of the facility) and appropriate personnel. The intent of this project is to improve the recreation, social and educational service provision capabilities for the citizens in a lower socioeconomic area of our City. Once again, we are very- pleased to be the recipient of this funding and are looking forward to worlringwith Harris County to make this project a reality. John Joerns will be the contact person for the City and he may be reached at (281) 471-5020. Sincerely) ~:f~~ City Manager (',l\llllxlll'>. L;lP"rrc.Tt'xas775i2-111,). nl~H71.5l'2l) HARRIS WNTY COMMUNITY DEVELOP.IT AGENCY 3100 Timmons lane. Suite 220 Houston. Texas 77027-5925 Phone: (713) 626-5651 Fox: (713) 963-9146 Email: director@hchcda.co.harris.tx.us R E C EI V E 0 Jensen Annex - 9418 Jensen Houston. Texas 77093-6821 Phone: (713) 696-7900 Fax: (713) 697-3164 Veterans Service - 1310 Prairie. Suite 1000. Houston. Texas 77002-2 45 JUN 2 9 1998 Phone: (713) 755-5243 Fax: (713) 755-5244 Robert Eckels. County Judge Bruce A. Austin. Director CITY SECRETARY'S OFFICE June 24, 1998 (;::'" 1'''j'"l..1 !!'~ ~ .1., :::- ~ f1 ..........?' =":) ~..". J J ~ Y :'1u.;i~.'i1 yui. G !: k -f2- Q(,,!~ Honorable Mayor and City Council City of La Porte 604 West Fairmont Parkway La Porte, TX 77571 Attn: Stephen L. Barr Dear Mayor Malone: Enclosed is your executed agreement between Harris County and the City of La Porte to provide funding for renovations to the Jennie Riley Recreation Center using Community Development Block Grant funds. If you ave any questions, please contact Elizabeth Rodriguez at (713)626-5651. BANer Ene losure 06241apo:s :\qa\er\cdbg98 97-103 Community Development (713) 626-5651 - Housing Rehabilitation (713) 840-8122 - Assisted Housing (713) 626-0917 Community Assistance (713) 696-7900 - Veterans Services (713) 755-5243 1""'- ~1 HARRIS _UNTY COMMUNITY DEVELOP_NT AGENCY 3100 Timmons Leine. Suite 220 Houston. Texos n027-5925 Phone: (713) 626-5651 Fox: (713) 963-9146 Email: director@hchcda.co.harris.tx.us Jensen Annex - 9418 Jensen Houston. Texas n093-6821 Phone: (713) 696-7900 Fax: (713) 697-3164 Veterans Service - 1310 Prairie. Suite 1000. Houston. Texas n002-2045 Phone: (713) 755-5243 Fax: (713) 755-5244 Robert Eckels. County Judge Bruce A. Austin. Director June 1, 1998 Commissioners Court Harris County Administration Building 1001 Preston, 9th Floor Houston, Texas 77002 Gentlemen: RE: Agreement between Harris County and City of La Porte for renovations to the Jennie Riley Recreation Center using Community Development Block Grant funds in the amount of $100,800.00. Attached are duplicate originals and five copies of the above referenced agreement to be placed on the Commissioners Court Agenda for June 16, 1998. Thank you for your assistance with this request. Presented iO Commissioners' Court BAA:ms JUN 1 6 1998 ,A.PPROVE ~ Recorded Vcl_Paga_ Attachment 98Iaport:ms:s:\opad\ctitems '" i,~~t,~,~y~~?>~?" B 1 .:- '.! I '"1_ ~l:n' r 86 "1 110 I . ..~. i'" Community Development (713) 626-5651 - Housing Rehabilitation (713) 840-8122 - Assisted Housing (713) 626-0917 - Community Assistance (713) 696-7900 - Veterans Services (713) 755-5243 .- , e e Harris County Community Development Agency COURT ABSTRACT CONTRACT FOR CONSTRUCTION June 16, 1998 On June 3, 1997 Commissioners Court allocated $100,800.00 in FY 1997 Community Development Block Grant funds to the City of La Porte to provide funding for renovations to the Jennie Riley Recreation Center. Attached for Commissioners Court review and approval is the contract for construction between Harris County and the City of La Porte. calaport:s:\qa \er\cdbg98 e e AGREEMENT BETWEEN HARRIS COUNTY AND CITY OF LA PORTE FOR RENOVATION OF THE JENNIE RILEY RECREATION CENTER THIS AGREEMENT, entered this 18th day of May , 19~ by and between Harris County, a body politic and corporate under the laws of the State of Texas, the herein called the "Grantee", and the City of La Porte, a body politic and corporate under the laws of the State of Texas, herein called the "Subrecipient". WHEREAS, the Grantee has applied for and received funds from the United States Government under Title I of the Housing and Community Development Act of 1974, Public Law 97-383, application number B-97-UC-48-0002; WHEREAS, Subrecipient is a City which has entered into a Cooperative Agreement with Grantee in accordance with 24 CFR 570.308; WHEREAS, the Grantee wishes to engage the Subrecipient to assist the Grantee in utilizing such funds; NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained., it is agreed between the parties hereto that; I. SCOPE OF SERVICE A. Activities The Subrecipient will be responsible for administering a Community Development.Block Grant (CnBG) Fiscal Year (97) Renovation of the Jennie Riley Recreation Center Project in a manner satisfactory to the Grantee and consistent with any standards required as a condition of providing these funds. Such program will include renovations to an existing recreation center in accordance with plans and specifications prepared and approved in accordance with the terms of this Agreement. The project will benefit low and moderate income persons who reside within the boundaries of the City of La Porte thus qualifying the City of La Porte for the receipt and expenditure of Community Development Block Grant funds under 24 CFR 570.208 (a) (1). The building is not used by Subrecipient for the general conduct of government. Program Delivery Activity: Project will consist of, as funds allow, the construction of a connecting hallway between the Center's two buildings; the removal of a portion of an interior wall to allow better monitoring of activities; and the construction of two new walls to allow e e better usage of available space. The buildings are located on a tract of land owned by Subrecipient which land is more fully described on attached exhibit "A". GeneraB Administration The Grantee through the County Engineer shall design the Project subject to the approval of the Subrecipient. The Grantee shall be responsible for the administration of the construction contracts. Grantee will advertise for and receive bids for the construction of the Project. Upon receipt and tabulation of the bids for the Project, Grantee will determine the lowest and best bid for the construction of the Project. In the event the lowest and best bid for the construction of the Project is an amount that would result in the cost of the Project being equal to or less than the sum of $78,909.00, Grantee will notify Subrecipient of the amount of the lowest and best bid for the Project. In the event the lowest and best bid for the construction of the Project is an amount in excess of the sum of$78,909.00, Grantee shall have the following four (4) options: 1. Subject to the approval of the Subrecipient, the Grantee may agree to use those Community Development Block Grant funds designated as contingency in Exhibit B attached hereto, to fund the construction costs to meet the lowest and best bid received by the Grantee; or 2. Grantee shall notify Subrecipient of the bid and undertake to negotiate with the Subrecipient for Subrecipient to agree in writing to pay the additional cost of the Project. ~ the event the Subrecipient agrees in writing to pay the additional costs, then and in that event the Grantee will proceed to let the contract and continue with the construction of the Project. In such event the entire amount. of the additional cost must be transmitted to Grantee, prior to the award of the bid. If the Subrecipient fails to agree in writing to pay said additional costs and Grantee fails to use contingency funds, then in that event, the Grantee may reject all bids and elect not to proceed with the letting of the contract and terminate the Project without any further obligations to Subrecipient; or 3. Grantee may notify Subrecipient of the bid and undertake to negotiate with the Subrecipient for Subrecipient to agree in writing to reduce or delete specific items in the bid proposal so that bids will be within the amount of available construction funds. 'In the event Subrecipient agrees in writing to reduce or delete items in the bid proposal, the Grantee will re-bid the project and proceed as if it wer~ the original bid; or. . .4. Grantee may reject all bids and elect not to proceed with the letting of the contract and terminate the Project without any further obligations to Subrecipient. 2 e e Within thirty (30) days after all action required in the option selected has been completed, the Grantee shall award the contract to the lowest and best bidder, in accordance with the usual and customary procedures of the Grantee, subject to certification of the availability of funds for the Project by the County Auditor. The Grantee reserves the right to decline to award the contract to all bidders. In such event, the Grantee, in its discretion, may either re-advertise for bids pursuant to the same understanding with regard to rejection of bids or terminate this agreement as hereinafter provided. The Grantee's determination of the lowest and best bid for the Project shall be final and conclusive. The Grantee shall establish a separate account or system of accounting for the money paid to it under the above paragraph. Further, the Grantee shall cause the funds paid by Subrecipient to the Grantee, which are not needed to meet obligations due or contemplated to be due within sixty (60) days, to be invested in the same manner as similar funds are invested by the Grantee in federal obligations or interest-bearing time deposits. The determination by Grantee of the portion of said funds needed to meet such obligations shall be conclusive. Any earnings from such investment shall be retained in the account or system until the completion of the construction of the Project, at which time the Grantee shall perform.or cause to be performed, a final accounting. If the sum paid by the Subrecipient to the Grantee hereunder, including interest earnings thereon, exceeds the amount of the Subrecipeint's share of the cost of the project, the Grantee shall promptly pay over the amount of such excess to the Subrecipient. The Grantee may terminate this Agreement without cause, at any time prior to the letting of the contract for construction of the Project, by written notice to the Subrecipient, and the Grantee shall have no obligation hereunder other than to return to Subrecipient the funds paid to the Grantee, if any, by Subrecipient pursuant to this Agreement. In the event Grantee elects to terminate this Agreement pursuant to this Paragraph, any interest earned on said money paid to the Grantee by Subrecipient pursuant to this agreement shall become the sole property of the Subrecipient. The Grantee and the Subrecipient may make such changes and amendments to the plans and specifications within the general scope of the approved Project as the County Engineer deems necessary or desirable during construction of the Project, so long as the original scope and intent of the Project is unchanged. During the construction of the Project, Subrecipient shall have the right to review all documents, maps, plats, records, photographs, reports or plans affecting said construction. The Subrecipient shall, at its sole expense, furnish the necessary inspection personnel to assure itself of compliance with the contract. In absence of inspection by the Subrecipient, the~ the Subrecipient shall be deemed to have accepted those inspections made by the Grantee. The sums paid by Subtecipient to Grantee pursuant to this Agreement will not be used by the Grantee for any purpose other than paying for the construction costs of the Project. 3 tit e B. perfonnance Monitorinf?: The Grantee will monitor the perfonnance of the Subrecipient against goals and performance standards required herein. Substandard performance as determined by the Grantee will constitute non-compliance with this Agreement. If action to correct such substandard perfomlance is not taken by the Subrecipient within a reasonable period of time after being notified by the Grantee, contract suspension or termination procedures will be initiated pursuant to 24 CFR 85.43. n. TIME OF PERFORMANCE Services of the Subrecipient shall start y,.ithin 7 days after the date of this Agreement and shall terminate when the Project is completed. In addition, the Subrecipient's covenants and Agreements shall extend for five (5) years after the funds provided for this Project are fully spent, in accordance with 24 CFR 570.505 and with applicable OMB circulars. m. PAYMENT It is expressly agreed and understood that the maximum total amount to be paid by the Grantee under this Agreement shall not exceed One Hundred Thousand Eight Hundred and No/IOO ($100,800.00). Drawdowns for the payment of eligible expenses shall be made against the line item budgets specified in Exhibit B and in accordance with performance. Expenses for general administration also shall be paid against the line item budgets specified in Exhibit B and in accordance with performance. Payments may be contingent upon certification of the Subrecipient's fmancial management system in accordance with the standards specified in OMB Circular A-IIO. The Grantee has no County funds for the payment of the services to be rendered under this Agreement. It is expressly understood that Grantee's obligation under this Agreement is conditioned upon receipt of funds for such purpose from the U.S. Department of Housing and Urban Development, by virtue of the above mentioned Grant(s). Accordingly, notwithstanding anything herein to the contrary, the maximwn liability of the Grantee under this Agreement, shall not exceed $100,800.00 or the amount actually received by the Grantee from HUD pursuant to the Block Grant, whichever is less, and Subrecipient, by execution of this Agreement, acknowledges its understanding of that fact. 4 e e IV. NOTICES Communication and details concerning this contract shall be directed to the following contract representatives: Grantee Subrecioient Bruce A. Austin, Director Harris County Community Development Agency 3100 Timmons Lane, Suite 220 Houston, Texas 77027 Honorable Mayor and City Council City of La Porte 604 West Fairmont Parkway La Porte, Texas 77571 V. SPECIAL CONDITIONS The Subrecipient agrees to comply with the requirements of Title 24 Code of Federal Regulations, Part 570 of the Housing and Urban Development regulations concerning Community Development Block Grants (CDBG) and all federal regulations and policies issued pursuant to these regulations. The Subrecipient further agrees to utilize funds available under this Agreement to supplement rather than supplant funds otherwise available. VI. GENERAL CONDITIONS A. General Compliance The Subrecipient agrees to comply with all applicable federal, state and local laws and regulations governing the funds provided under this Agreement, including Executive Order 12372 governing the review and coordination of Federally Assisted Program and Projects. B. Indeoendent Contractor Subrecipient shall operate hereunder as an independent Contractor and not as an officer, agent, servant or employee of Grantee. Subrecipient shall have exclusive control of, and the exclUsive right to control, the details of the work and services to be performed by Subrecipient hereunder, and all persons perfonning same, except as otherwise set forth herein and shall be solely responsible for the acts and omissions of its officers, members, agents, servants, employees, subSubrecipients, program participants, licenses or invitees. The doctrine of respondent superior shall not apply as between Grantee and Subrecipient, its officers, members, agents, servants, employees, subSubrecipients, program participants, licenses or invitees, and nothing herein shall be construed as creating a partnership or joint enterprise between Grantee and Subrecipient. It is expressly understood and agreed that no officer, member, agent, employee, subSubrecipient, license or invitee of the Subrecipient, license or invitee of the Subrecipient, nor any program 5 e e participant hereunder, is in the paid service of Grantee and that Grantee does not have the legal right to control the details of the tasks performed hereunder by Subrecipient, its officers, members, agents, employees, subSubrecipients, program participants, licenses or invitees. Grantee shall in no. way nor under any circumstances be responsible for any property belonging to Subrecipient, its officers, members agents, employees, subSubrecipients, program participants, licenses or invitees, which may be lost, stolen, destroyed or in any way damaged; and Subrecipient hereby indemnifies and holds harmless Grantee and its officers, agents, and employees from and against any and all claims or suits. C. Indemnitv Subrecipient covenants and agrees to indemnify, hold harmless and defend, at its own expense, Grantee and its officers, agents, servants and employees from and against any and all claims or suits for property loss or damage and/or personal injury, including death, to any and all persons, of whatsoever kind of character, whether real or asserted, arising out of or in connection with the execution, performance, attempted performance or nonperformance of this contract and agreement and/or the operations, activities and services of the Program described herein, whether or not caused, in whole or in part, by alleged negligence of officers, agents, servants, employees, Subrecipients or subSubrecipients of Grantee; and Subrecipient hereby assumes all liability and responsibility of Grantee and its officers, agents, servants, and employees for any and all claims or suits for property loss or dan:tage and/or personal injury, including death, to any and all persons, of whatsoever kind or character, whether real or asserted, arising out of or in connection with the execution, performance, attempted performance or nonperformance of this contract and agreement and/or the operations, activities and services of the programs described herein, whether or not caused in whole or in part, by alleged negligence of officers, agents, servants, employees, Subrecipients or subSubrecipients of Grantee. Subrecipient likewise covenants and agrees to and does hereby indemnify and hold harmless Grantee from and against any and all injury, damage or destruction of property of Grantee, arising out of or in connection with all acts Qr omissions of Subrecipient, its officers, members, agents, employees, subSubrecipients, invitees, licensees, or program participants, or caused, in whole or in part, by alleged negligence of officers, agents, servants, employees, Subrecipients or subSubrecipients of Grantee. D. Workers' Comoensation The Subrecipient shall provide Workers' Compensation Insurance coverage for all employees involved in the performance of this Agreement. Subrecipient must provide to Harris County Community Development Agency a Certificate of such insurance. The Subrecipient shall also abide by the Contract Work Hours and Safety Standards Act of 1962 (40U.S.C. 327 et seq.). 6 , e I E. Public Liability Insurance Subrecipient shall furnish a certificate of insurance as proof that it has secured and paid for policies of public liability and automobile liability insurance covering all risks incident to or in connection with the execution, perfonnance, attempted perfonnance or nonperfonnance of this contract and agreement. The amounts of such insurance shall not be less than the maximum liability, which can be imposed on Grantee under the laws of the State of Texas. At present, such amounts shall be as follows: Property damage, per occurrence $100,000 Bodily injury or death, per person $100,000 Bodily injury or death, per occurrence $300,000 With the understanding and agreement by Subrecipient that such insurance amounts shall be revised upward at Grantee's option and that Subrecipient shall revise such amounts within thirty (30) days following notice to Subrecipient of such requirements. Subrecipient also covenants and agrees to furnish the Grantee with a certificate of insurance as proof that it has obtained and paid for a policy of Worker's Compensation Insurance in the amounts required by State law, covering any and all employees of Subrecipient active in the program funded under this contract; and Subrecipient agrees to require its subSubrecipients to carry adequate Worker's Compensation Insurance in the amounts required by State law. Subrecipient will submit to Grantee documentation that it has obtained insurance coverage and has executed bonds as required in this contract within thirty (30) days of the execution of this contract and prior to payment of any monies hereunder. F. Grantor Recognition The Subrecipient shall insure recognition of the role of the grantor agency in providing services through this Agreement. All activities, facilities and items utilized pursuant to this Agreement shall be prominently labeled as to funding source. In addition, the Subrecipient will include a reference to the support provided herein in all publications made possible With funds made available under this Agreement. G. Amendments Grantee or Subrecipient may amend this Agreement at any time provided that such amendmen.ts make specific reference to this Agreement, and are executed in writing, signed by a duly authorized representative of each organization, and approved by the 7 . e Grantee's governing body. Such amendments shall not invalidate this Agreement, nor relieve or release Grantee or Subrecipient from its obligations under this Agreement, and must confonn to 24 CFR 85.30. Grantee may, in its discretion, amend this Agreement to conform with federal, state or local governmental guidelines, policies and available funding amounts, or for other reasons. If such amendments result in a change in the funding, the scope of services, or schedule of the activities to be undertaken as part of this Agreement, such modifications will be effected only by written amendment signed by both Grantee and Subrecipient. H. Suspension or Tennination Grantee and Subrecipient may terminate this Agreement in whole or in part at any time in writing signed by both parties, specifying the effective date of the termination. Partial terminations of the Scope of Service in Paragraph 1.A. above must state the portion to be terminated. In the event of any termination, all finished or unfinished documents, data, studies, surveys, maps, models, photographs, reports or other materials prepared by either party under this Agreement shall become the property of the party designated in the termination Agreement, which Agreement shall state whether the other party will be entitled to receive just and equitable compensation for any satisfactory work completed on such documents or materials prior to the termination. 1. Reversion of Assets Upon expiration of the term of this Agreement, the subrecipient shall transfer to the recipient any CDBG funds on hand at the time of expiration and any account receivable attributable to the use of CDBG funds. For any year following the expiration or termination of this contract that Subrecipient holds personal property attributable to funds hereunder, Subrecipient shall submit an Annual Report of Personal Property identifying the property and its location, with such report being filed with the Harris County Community Development Agency and the Harris County Auditor. Grantee may also suspend or terminate this Agreement, in whole or in part, if Subrecipient materially fails to comply with any term of this Agreement, or with any of the rules, regulations or provisions referred to herein; and the Grantee may declare the Subrecipient ineligible for any further participation in Grantee Agreements, in addition to other remedies as provided by law. In the event there is probable cause to believe the Subrecipient is in noncompliance with any applicable rules or regulations, the Grantee may withhold up to fifteen (15) percent of said Agreement funds until such time as the Subrecipient is found to be in compliance by the Grantee, or is otherwise adjudicated to be in compliance. 8 . e VII. ADMINISTRATIVE REOUlREMENTS A. Financial Management 1. Accounting Standards The Subrecipient agrees to comply with OMB Circular A-lIO or A-128, as applicable and agrees to adhere to the accounting principles and procedures required therein, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred. 2. Cost Princioles The Subrecipient shall administer its program in conformance with OMB Circulars A.:.122, "Cost Principles for Non-Profit Organizations," or A-21, "Cost Principles for Educational Institutions," ; or A-87, "Cost Principles for State or Local Government" as applicable. If the Subrecipient is a governmental or quasi- governmental agency, the applicable sections of 24 CFR Part 85, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, ") for all costs incurred whether charged on a direct or indirect basis; or, the applicable sections of 24 CFR Part 84, if Subrecipient is a non-profit corporation. B. Documentation and Record-Keeoin~ 1. Records to be Maintained The Subrecipient shall maintain all records required by the federal regulations specified in 24 CFR Part 570.506, and that are pertinent to the activities.to be funded under this Agreement. Such records shall include but not be limited to: a) Records providing a full description of each activity undertaken; b) Records demonstrating that each activity undertaken meets one of the National Objectives of the CDBG program; c) Records required to determine the eligibility of activities; d) Records required to document the acquisition, improvement, use or disposition of real property acquired or improved with CDBG assistance; 'e) Records documenting compliance with the fair housing and equal . opportunity components of the CDBG program; f) Financial records as required by 24 CFR Part 570.502, and OMB Circular A-lIO; and g) Other records necessary to document compliance with Subpart K of 24 CFR 570. 9 e e 2. Retention The Subrecipient shall retain all records pertinent to expenditures incurred under this Agreement for a period of three (3) years after the termination of all activities funded under this agreement, or after the resolution of all Federal audit findings, which ever occurs later. Records for non-expendable property acquired with funds under this Agreement shall be retained for three (3) years after final di.sposition of such property. Records for any displaced person must be kept for three (3) years after he/she has received final payment. Subrecipient must also comply with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 3. Property Records The Subrecipient shall maintain real property inventory records which clearly identify properties purchased, improved or sold. Properties retained shall continue to meet eligibility criteria and shall conform with the "changes in use" restrictions specified in 24 CFR Parts 570.503(b )(8). Subrecipient must insure that any independent audit required hereunder include a report on real property inventory as a supplemental schedule in the audit. 4. National Obiectives The Subrecipient agrees to maintain documentation that demonstrates that the activities carned out with funds provided under this Agreement meet one or more of the CDBG program's national objectives-I) benefit low/moderate income persons, 2) aid in the prevention or elimination of slums or blight, 3) meet community development needs having a particular urgency - as defined...in 24 CFR Part 570.208. 5. Close-Outs Subrecipient obligation to the Grantee shall not end until all close-out requirements are completed as defined in 24 CFR 85.50. Activities during this close-out period shall include, but are not limited to; making final payments, disposing of program assets (including the return of all unused materials, equipment, unspent cash advances, program income balances, and receivable accounts to the Grantee, and determining the custodianship of records). 6. Audits & Inspections All Subrecipient records with respect to any matters covered by this Agreement shall be made available to the Grantee, its designees or the Federal Government, at any time during normal business hours, as often as the Grantee deems 10 e e necessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by the Subrecipient within 30 days after receipt by the Subrecipient. Failure of the Subrecipient to comply with the above audit requirements wiII constitute a violation of this Agreement and may result in the withholding of future payments. Subrecipient hereby agrees to have an annual agency audit conducted in accordance with Generally Accepted Governmental Auditing Standards (the "Yellow Book''). The contract for the audit and the scope of the audit shall be subject to approval thereof by the. Harris County Community Development Agency and the Harris .County Auditor. The audit must include a statement regarding compliance with Federal Regulations, including national objectives of the program. C. Reoorting and Payment Procedures 1. Budgets The Subrecipient has submitted a detailed budget (see Exhibit B) in a form and content prescribed by Harris County Auditor. The Grantee and the Subrecipient may agree to revise the budget from time to time in accordance with existing county policies. 2. Program Income The Subrecipient shall report all program income as defined at 24 CFR 570.500(a) generated by activities carried out with CDBG funds made available under this Agreement. The use of program income by the Subrecipient shall comply with the requirements set forth at 24 CFR 570.504. By way of further limitations, the Subrecipient may use such income during the contract period for activities permitted under this Agreement and shall reduce requests for additional funds by the amount of any such program income balances on hand. All unused program income shall be returned to the Grantee at the end of the contract period. Any interest earned on cash advances from the U.S. Treasury is not program income and shall be remitted promptly to the Grantee. 3, Indirect Costs If indirect costs are charged, the Subrecipient will develop an indirect cost allocation plan for determining the appropriate Grantee share of administrative costs and shall submit such plan to the Grantee for approval. 4. Payment Procedures The Grantee will pay to the Subrecipient funds available under this Agreement based upon information submitted by the Subrecipient and consistent with any approved budget and county policy concerning payment. With the exception of 11 e e certain advances, payments will be made for eligible expenses actually incurred by the subrecipient, and not to exceed actual cash requirements. Payments will be adjusted by the Grantee in accordance with advance fund and program income balances available in Subrecipient accounts. In addition, the Grantee reserves the right to liquidate !bnds available under this Agreement for costs incurred by the Grantee on behalf of the Subrecipient. D. Procurement 1. Comoliance The Subrecipient shall comply with current county policy concerning the purchase of equipment and shall maintain an inventory record of all non-expendable personal property as defined by such policy as may be procured with funds provided herein. Any real property under Subrecipient's control that was acquired or improved in whole or in part with CDBG funds must either be: a. Used by the Subrecipient to meet one of the national objectives in 24 CFR 570.200(a) (2) and (3) until five years after expiration or termination of the Grantee's Agreement with HUD; or b. Transferred to the Grantee; or c. Disposed of in a manner which results in the amount of the then current fair market value of the property less any portion thereof attributable to expenditures of non-CDBG funds for acquisition thereof, or improvements to, the property being reimbursed to the Grantee. Such reimbursement is not required if disposed of more than five (5) years after the expiration or termination of this Agreement. d. Further, if within five years of the termination or expiration of this Agreement, the Subrecipient ceases to use any or all personal property attributable to CDBG funds to meet a national objective, the personal property shall either revert to the Grantee or be disposed of in accordance with the applicable federalru1es and regulations, including but not limited to OMB Circular A-IIO. e. The Grantee in its sole discretion shall determine whether or not the Subrecipient use of any property meets a national objective contained in 24 CPR 570.200(a) (2) and (3). f. After the expiration of five years, the Subrecipient shall have no obligation to comply with this section regarding real or personal property. 12 " ". e . g. Nothing contained herein shall be construed to conflict with the duties of the Subrecipient as set forth in the Texas Non-Profit Corporation Act (Tex.Ann. Civ. St. Art. 1396-1.01, et seq.) or any other applicable statue. 2. OMB Standards The Subrecipient shall procure materials in accordance with the requirements of OMB Circular A-110, Procurement Standards, and shall subsequently follow Property Management Standards, covering utilization and disposal of property. 3. Travel The Subrecipient shall obtain written approval from the Grantee for any travel outside the Grantee's service area with funds provided under this Agreement. 4. Relocation. Acquisition and Disolacement The Subrecipient agrees to comply with 24 CFR 570.606 relating to the acquisition and disposition of all real property utilizing grant funds, and to the displacement of persons, businesses, non-profit organizations and farms occurring as a direct result of any acquisition of real property utilizing grant funds. The Subrecipient agrees to comply with applicable Grantee Orders, and Policies concerning displacement of individuals from their residences, including The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. vrn. PERSONNEL & P ARTICIP ANT CONDITIONS A. Civil Rights 1. Comoliance The Subrecipient agrees to comply with Title VI of the Civil Rights Act of 19~4 as amended, Title vm of the Civil Rights Act of 1968 as amended, Section 109 of Title 1 of the Housing and Community Development Act of 1974, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and with Executive Order 11246 as amended by Executive Orders 11375 and 12086 and all other applicable requirements of24 C.F.R. Subpart K. 2. Nondiscrimination The Subrecipient will not discriminate against any employee or applicant for employment because of race, color, creed, religion, ancestry, national origin, sex, disability or other handicap, age marital status, or status with regard to public 13 e e assistance. The Subrecipient will take affirmative action to insure that all employment practices are free from such discrimination. Such employment practices include but are not limited to the following: hiring, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff, termination, rates of payor other forms of compensation, and selection for training, including apprenticeship. The Subrecipient agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the Subrecipient setting forth the provisions of this nondiscrimination clause. Subrecipient shall also abide by Title IX of the Education Amendments of 1972 (20 D.S.C. - 1681 et seq.) which prohibits sex discrimination in federally assisted education programs insofar as it applies to the terms of this Agreement. 3. Section 504 The Subrecipient agrees to comply with any federal regulations issued pursuant to compliance with Section 504 of the Rehabilitation Act of 1973, (29 U.S.C. 706) which prohibits discrimination against the handicapped in any federally assisted program. The Grantee shall provide the Subrecipient with any guidelines necessary for compliance with that portion of the regulations in force during the term of this Agreement. B. Affirmative Action 1. ADDroved Plan The Subrecipient agrees that it shall be committed to carry out an Affirmative Action Program in keeping with the principles as provided in President's Executive Order 11246 of September 24, 1965. The Subrecipient shall to the greatest extent feasible, give opportunities for training and employment to..lower income residents of the County and shall award Agreements for work in connection with the Project to business concerns which are located in or oWned in substantial part by persons residing in the County. However, the Subrecipient shall not engage in any practices in the procurement of contracts for property and services which would be prohibited under 24 C.F.R. 85.36. 2. WIMBE The Subrecipient will use its best efforts to afford minority- and women-owned business enterprises the maximum practicable opportunity to participate in the performance of this contract. As used in this contract, the term "minority and female business enterprise" means a business at least fifty-one (51) percent owned and controlled by minority group members. For the purpose of this definition, "minority group members" are Afro-Americans, Spanish-speaking, Spanish surnamed or Spanish-heritage Americans, Asian-Americans, and American Iridians. The Subrecipient may rely on written representations by Subrecipients 14 e e regarding their status as minority business enterprises in lieu of an independent investigation. 3. Access to Records The Subrecipient shall furnish and cause each of its sub-subrecipients to furnish all information and reports required hereunder and will permit access to its books, records and accounts by the Grantee, HUD or its agent, or other authorized federal officials for purposes of investigation to ascertain compliance with the rules, regulations and provisions stated herein. 4. Notifications The Subrecipient will send to each labor union or representative of workers with which it has a collective bargaining agreement or other agreement or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or worker's representative of the Subrecipient's commitments hereunder, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 5. EEO/AA Statement The Subrecipient will, in all solicitations or advertisements for employees placed by or on behalf of the Subrecipient, state that it is an Equal Opportunity or Affirmative Action Employer, as applicable. 6. Subcontract Provisions The Subrecipient will include the provisions of Paragraphs VITI A, Civil Rights, and B, Mfinnative Action, in every subcontract or purchase order, specifically or by reference, so that such provisions will be binding upon each sub-Sribrecipient or vendor. C. Emplovment Restrictions 1. Prohibited Activitv The Subrecipient is Pliohibited from using funds provided herein or personnel employed in the administration of the program for political activities; sectarian, or religious activities; lobbying, political patronage, and nepotism activities. 2. OSHA ~ere employees are engaged in activities not covered under the Occupational Safety and Health Act of 1970, they shall not be required or permitted to work, be 15 e e trained, or receive services in buildings or surroundings or under working conditions which are unsanitary, hazardous or dangerous to the participant's health or safety. 3. Labor Standards The Subrecipient agrees to comply with. the requirements of the Secretary of Labor in accordance with the Davis-Bacon Act as amended, the provisions of Contract Work Hours, the Safety Standards Act, the Copeland "Anti-Kickback" Act [18 U.S.C 874], the Davis Bacon Act [40 U.S.C. 276(c)] and all other applicable federal, state and local laws and regulations pertaining to labor standards insofar as those acts apply to the performance of this Agreement. The Subrecipient shall maintain documentation which demonstrates compliance with hour and wage requirements of this part. such documentation shall be made available to the Grantee for review upon request. The Subrecipient shall also abide by Chapter 11 of Title 18 of the U.S. Code (18 U.S.C. 201-224) which prohibits a number of criminal activities, including bribery, graft and conflict of interest. The Subrecipient agrees that, except with respect to the rehabilitation or construction of residential property designed for residential use for less than eight (8) households, all contractors engaged under contracts in excess of $2,000.00 for construction, renovation or repair of any building or work financed in whole or in part with assistance provided under this Agreement, shall comply with federal requirements adopted by the Grantee pertaining to such contracts and with the applicable requirements of the regulations of the Department of Labor, under 29 CPR, Parts 3, I, 5, and 7 governing the payment of wages and ratio of apprentices and trainees to journeymen; provided, that if wage rates higher that those required under the regulations are imposed by state or local law, nothing hereunder is intended to relieve the subrecipient of its obligation, if any, to require payment of the higher wage. The Subrecipient shall cause or require to be inserted in full, in all such contracts subject to such regulations, provisions meeting the requirements of this paragraph, for such contracts in excess of$10,000.00. 4. "Section 3" Clause a. Compliance Compliance with the provisions of Section 3 of the Housing and Urban Development Act of 1968, as amended, the regulations set forth in 24 CFR 135, and all applicable rules and orders issued hereunder prior to the executiqn of this Agreement, shall be a condition of the federal financial assistance provided under this Agreement and binding upon the Grantee, the Subrecipient and any sub-Subrecipients. Failure to fulfill these requirements shall subject the Grantee, the Subrecipient and any sub- 16 e e Subrecipients, their successors and assigns, to those sanctions specified by the agreement through which federal assistance is provided, and as set out in 24 C.F.R. Subpart O. The Subrecipient certifies and agrees that no contractual or other disability exists which would prevent compliance with these requirements. The Subrecipient further agrees to comply with these "Section 3" requirements and to include the following language in all subcontract executed under this Agreement. "The work to be performed under this contract is a project assisted under a program providing direct federal financial assistance from HUD and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701. Section 3 requires that, to the greatest extent feasible opportunities for training and employment be given to lower income residents of the project area and contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in the areas of the project." The Subrecipient certifies and agrees that no contractual or other disability exists which would prevent compliance with the requirements. b. Notifications The Subrecipient agrees to send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or understanding, if any a notice advising said labor organization or worker's representative of its commitments under this Section 3 clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment or training. c. Subcontracts The Subrecipient will include this Section 3 clause in every subcontract and will take appropriate action pursuant to the subcontract upon a finding that the sub-Subrecipient is in violation of regulations issued by the Grantor. Agency. The Subrecipient will not subcontract with any sub- Subrecipient where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR 135 and will not let any subcontract unless the sub-Subrecipient has first provided it withgpreliminary statement of ability to comply with the requirements of these regulations. 17 e e D. Conduct 1. Assi gnabi lity The Subrecipient shall not assign or transfer any interest in this Agreement without the prior written consent of the Grantee thereto; provided, however, that claims for money due or to become due to the Subrecipient from the Grantee under this Agreement may be assigned to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer shall be furnished promptly to the Grantee. 2. Hatch Act The Subrecipient agrees that no funds provided, nor personnel employed under this Agreement, shall be in any way or to any extent engaged in the conduct of political activities in violation of Chapter 15 of Title V Vnited States Code. 3. Conflict of Interest The Subrecipient agrees to abide by the provisions of 24 CFR 570.611 with respect to conflicts of interest, and covenants that it presently has no financial interest and shall not acquire any financial interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this Agreement. The Sub recipient further covenants that in the performance of this Agreement no person having such a financial interest shall be employed or retained by the Subrecipient hereunder. These conflict of interest provisions apply to any person who is an employee, agent, consultant, officer, or elected official or appointed official of the Grantee, or of any designated public agencies or subrecipients which are receiving funds under the CDBG Entitlement program. The Subrecipient also agrees to abide by 18 V.S.C. 286, which provides for conspiracy to defraud the Federal Government with Respect to Claims. In addition, the Subrecipient will also abide by the False Claims Act (31 U.S.C. 3729 et seq.), 18 U.S.C. 287 relating to False, Fictitious and Fraudulent Claims, 18 U.S.C. 245 Federally Protected Activities, 18 U.S.C. 1001 regarding General Statements or Entries, the Program Fraud Civil Remedies Act (31 V.S.C. 3801- 3812), the Federal Claims Collection Act of 1966 (31 V.S.C. 952) as amended by the Derby Collection Act of 1982, the Meritorious Claims Act (31 V.S.C. 3702), the Tucker Act (28 V.S.C. 1346, 1491, and 2501), the Wunderlich Act (41 V.S.C. 321-322)" the Anti-Deficiency Act (31 V.S.C. 1341), and Section 208(a) of the Intergovernmental Personnel Act of 1970, as amended, insofar as they apply to the terms of this Agreement. 18 e e 4. Subcontracts a. Approvals The Subrecipient shall not enter into any subcontracts with any agency or individual in the perfomlance of this Agreement without the written consent ofthe Grantee prior to the execution of such agreement. b. Monitoring The Subrecipient will monitor all subcontracted services on a regular basis to assure contract compliance. Results of monitoring efforts shall be summarized in written reports and supported with documented evidence of follow-up actions taken to correct areas of noncompliance. c. Content The Subrecipient shall cause all of the provisions of this Agreement its entirety to be included in and made a part of any subcontract executed in the performance of this Agreement. . d. Selection Process The Subrecipient shall undertake to insure that all subcontracts let in the performance of this agreement shall be awarded on a fair and open competition basis. Executed copies of all subcontracts shall be forwarded to the Grantee along with documentation concerning the selection process. 5. Copvright If this Agreement results in any copyrightable material, the Grantee and/or grantor agency reserves the right to royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise use and to authorize others to use, the work for 6. Religious Organization Thc~ Subrecipient agrees that funds provided under this Agreement will not be utilized for religious activities, to promote religious interests, or for the benefit of a religious organization in accordance with the federal regulations specified in 24 CFR 570.~OOG). 19 e e IX. ENVIRONMENTAL CONDITIONS A. Air and Water The Subrecipient agrees to comply with the following regulations insofar as they apply to the perfonnance of this Agreement: · Clean Air Act, 42 U.S.C., 1857, et seq. . · Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq., as amended 1318 relating to inspection, monitoring, entry, reports, and infonnation, as well as other requirements specified in said Section 114 and Section 308, and all regulations guidelines issued thereunder. · Environmental Protection Agency (EPA) regulations pursuant to 40 C.F.R., Part 50, as amended. · National Environmental Policy Act of 1969 (42 D.S.C. 432 et seq; as amended). · HUD Environmental Review Procedures (24 CFR, Part 58). B. Flood Disaster Protection The Subrecipient agrees to comply with the requirements of the Flood Disaster Protection Act of 1973 (p.L.-2234) in regard to the sale, lease or other transfer of land acquired, cleared or improved under the tenns of this Agreement, as it may apply to the provisions of this Agreement. C. Lead-Based Paint The Subrecipient agrees that any construction or rehabilitation of residential structures with assistance provided under this Agreement shall be subject to HUD Lead-Based Paint Regulations at 24 CPR 570.608, and 24 CFR Part 35, and in particular Sub-Rart B thereor.' Such regulations pertain to all HUD-assisted housing and require that all owners, prospective owners, and tenants of properties constructed prior to 1978 be properly notified that such properties may include lead-based paint. Such notification shall point out the hazards of lead-based paint and explain the symptoms, treatment and precautions that should be taken when dealing with lead-based paint poisoning, and of the advisability and availability of blood-level screening for children under 7 years of age. D. Historic Preservation The Subrecipient agrees to comply with the Historic Preservation requirements set forth in the National lUstoric Preservation Act of 1966, as amended (16 U.S.C. 470) and the procedures set forth in 36 CFR, Part 800, Advisory Council on Historic Preservation Procedures for Protection of Historic Properties, insofar as they apply to the performance of this Agreement. 20 a. . . e e In general this requires concurrence from the Texas Historical Commission and Antiquities Committee for all rehabilitation and demolition of historic properties that are fifty years old or older or that are included on a Federal, State, or local historic property list. E. Wildlife Protection The Subrecipient agrees to comply with the requirements of the Endangered Species Act of 1973 as listed in 50 CFR 17.11 and .50 CFR Part 451, the Lacey Act (18 D.S.C. 42), the Migratory Bird Treaty Act (16. U.S.C. 703-12), the Fish and Wildlife Coordination Act (16 U.S.C. 661-667e), Section 4(f) of the Department of Transportation Act (49 D.S.C. 1653(f), the Federal Water Pollution Control Act (33 D.S.C. 1251 et seq.), the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451), and the Safe Drinking Water Act of 1974 (42 D.S.C. 300f to j-l0), insofar as they apply to the perfonnance of this Agreement. 21 e e IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written above. Harris County City of La Porte Attest: Bruce A. tin, Harris County 0 unity Development Agency BY~~h~/_ Mayor kels, COUNTY JUDGE JUN 1 6 1998 Attest~fUliA~ d, ]A ,(i!ff. Secretary APPROVED AS TO FORM AND LEGAL SUFFICIENCY Michael P. Fleming, County Attorney By: ohn Barnhill -04 sistant County Attorney lapone:s:\qa\er\cdbg97 97.103 22 . FEB 6 '98 13:27 7]"" _,1-' LA PORTE FITNESS eTR e PAGE.001 EXHIBIT A City of La Porte Established 1892 Ms. Elizabeth Rodriguez Harris County Community Development Via Fax {713)963-9146 Dear Ms. Rodriguez: In response to your inquiry, the full legal description for the Jennie Riley Center IS: LOTS 1-32, BLOCK 8.1, TOWN OF LA PORTE, JOHNSON HUNTER. A-35 I apologize for the delay in reaching you with this information, but I have misplaced your address and number. Please call me at (281)470-7275 or e-mail m.e at barrs@ci.la-oorte.tx.us so that I can do a better job of communication. If you require any additional information, please feel free to call. Thanks. Stephen Barr, Director Parks & Recreation Department City of La Porte PoO. Box 1115 · La Porte, Texas 77572-1115 · (281) 471-5020 ** TOTRL PAGE.001 ** It CATEGORY Construction Contingency DesignlEngineering Admin. Inspection Clerical Total EXHIBIT B BUDGET CDA $78,909 9,891 8,000 2,500 1,500 $100,800 Project No. CD 97103 Fund 5020, Org 626, Pgm 003, Acct 3035 $88,800 Fund 5020, Org 626, Pgm 003, Acct 4016 $12,000 laporte$:s:\qa\er\cdbg97 e MATCH $-0- -0- -0- -0- -0- $-0- TOTAL $78,909 9,891 8,000 2,500 1,500 -$100,800 e EXHIBIT C e Certification for Contracts, Grants, Loans and Cooperative Agreements The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form.-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, sub grants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall . certify and disclose accordingly. This certification is material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more that $100,000 for each such failure. Executed this J Wi- day of ~r . 19.1.[. BY~~~ JJDiM.eJ L. M(),(DUV (Type or Print Name) fVL k~ D I- (Title) Covered Action: [,,-411 OP La.. Por+t:- l (program, Project or ActiVity) e e ORDER THE STATE OF TEXAS COUNTY OF HARRIS On this (~(t, day OfJ l.l ~. 1998 the Commissioners Court sitting as the governing body /of Harris County, Texas, at a regular meeting, upon motion of Commissioner L-J2.G. , seconded by Commissioner 64 u..pt.. , duly put and carried, IT IS ORDERED that County Judge Robert Eckels be, and he is hereby, authorized to execute for and on behalf of Harris County, an Agreement between Harris County and the City of La Porte, for the funding of renovations to the Jennie Riley Recreation Center using Community Development Block Grant funds, said agreement being incorporated herein by reference as though fully set forth herein word for word. ordlapor:s:qa\er\cdbg98 Presented to Commissioners' Coun JUN 1 6 1998 APPROVE Recorded Vol_Page_ . e IQUEST FOR CITY COUNCIL AGENDITEM AGENDA DATE May 18. 1998 REQUESTED BY Jeff litchfield. Finance Director/ACM _ REPORT; XX RESOLUTION; _ ORDINANCE; The City's Financial Advisors and Bond Counsel have requested the City Council consider approving the attached resolution. The resolution declares the intent of the City Council to issue the $1.25 in Revenue Bonds for the June 22, 1998 Bond Sale. ACTION REQUIRED BY COUNCIL: Approve Resolution Authorizing Publication of Notice of Intention to Issue Revenue Bonds. FUND N/A ACCT NUM: FUNDS AVAILABLE: UNCIL AGENDA .s,/Lf-C,t DATE e Resolution 98- 0 6 e RESOLUTION AUTHORIZING PUBLICATION OF NOTICE OF INTENTION TO ISSUE REVENUE BONDS WHEREAS, the City Council (the "City Council") of the City of La Porte, Texas (the "City"), finds that the construction of improvements to the City's waterworks and sewer system and the payment of contractual obligations for professional services in connection therewith (including, but not limited to, financial advisory, legal, and engineering) would be beneficial to the inhabitants of the City and such property is needed to perform essential govemmental functions, and the City Council has determined that revenue bonds (the "Bonds") should be issued pursuant to the applicable laws of the State of Texas, including Articles 1111 through 1118, Vemon's Texas Civil Statutes, for such purposes; WHEREAS, prior to the issuance of the Bonds, the City Council is required to publish notice of its intention to issue the Bonds in a newspaper of general circulation in the City, the notice stating (i) the time and place the City Council tentatively proposes to pass the ordinance authorizing the issuance of the Bonds (ii) the maximum amount of Bonds proposed to be issued, (iii) the purposes for which the Bonds are to be issued, and (iv) the manner in which the City Council proposes to pay the Bonds; . NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LA PORTE, TEXAS, THAT: SECTION 1. Attached hereto and marked "Exhibit A" is a form of notice, the form and substance of which are hereby adopted and approved. SECTION 2. The Mayor or the City Secretary shall cause the notice to be published, in substantially the form attached hereto, in a newspaper, as defined in Section 2051.44, Texas Government Code, of general circulation in the City for two consecutive weeks, the date of first publication to be at least 14 days prior to the date tentatively set for the ordinance authorizing the issuance of the Bonds. SECTION 3. The Mayor and the City Secretary are hereby authorized and directed to execute the Certificate to which this Resolution is attached on behalf of the City Council and to do any of all things proper and necessary to carry out the intent thereof. SECTION 4. That the City Council officially finds, determines, recites and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the offices of City of La Porte for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Govemmen~ Code; and that this meeting has been open to the public as required by law at all times during which this resolution and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereOf. PASSED AND APPROVED this the 18th day of May, 1998. n M .one, May r /1 ~aJ / ( .ED: ~.. ~--2. ox Askins, City Attomey ~ev JlllldL Ma ha Gillett, CIty Secretary e. e EXHIBIT A NOTICE OF INTENTION TO ISSUE REVENUE BONDS NOTICE is hereby given that it is the intention of the City Council (the "City Council") of the City of La Porte, Texas (the "City") to adopt an Ordinance providing for the issuance of interest- bearing revenue bonds of the City presently contemplated to be designated and known as the "CITY OF LA PORTE, TEXAS WATERWORKS AND SEWER SYSTEM REVENUE BONDS, SERIES 1998" (the "Bonds") for the purpose of construction of improvements to the City's waterworks and sewer system and the payment of contractual obligations for professional services in connection therewith (including, but not limited to, financial advisory, legal, and engineering). The City Council tentatively proposes to authorize the issuance of the Bonds at its regular meeting place in the City Hall, La Porte, Texas, at a Regular Meeting of the Council to be commenced at 6:00 p.m., on the 22nd day of June, 1998 in an amount expected not to exceed $1,250,000. The City Council proposes to provide for payment of the Bonds from a pledge of the net revenues of the City's waterworks and sewer system. . . " REQulT FOR CITY COUNCIL AG&A ITEM Agenda Date Requested: May 18,1998 Requested By: Guy Rankin / Doug Kneupp~ Report Resolution Department: Planning Ordinance Exhibits: Utility Extension Agreement Letter from City of Shoreacres Excerpt from Apri113, 1998 City of Shoreacres Council Minutes Summary & Recommendation On July 7, 1997, Council approved a Special Conditional Use Permit for a 176 unit apartment project located at the comer of SH146 and McCabe Road. Sanitary sewer service is currently not available in this area of LaPorte. In order for the development of the apartment project to proceed, an Agreement is needed to define the role of the City in providing sanitary sewer service and the role of the Developer in paying for sewer service. The Agreement contemplates that the City will hire an engineer to design the sewer facilities and then have the sewer facilities constructed (there is an item on this evening's- agenda to hire an engineer). It could take as long as 13 months to design and build the ultimate sewer facilities. As constructed, this agreement will allow the Developer to seek Interim Service for sewer while the ultimate facilities are being constructed. The Developer has negotiated with the City of Shoreacres for that Interim Service. The Interim Service will be terminated upon completion of the La Porte sewer facility. Under this Agreement, the City will receive a maximum payment of$119,500 from the Developer for sewer service. One-half this amount will be paid to the City when the Developer is issued a building pennit for his apartment project. The other one-half payment will be made when the City begins construction of the sewer facilities. Action Required by Council: Consider authorizing the City Manager to execute a Utility Extension Agreement with the Developer of the Bayou Forest Apart~ents. Availability of Funds: General Fund XX Capital Improvement Other Water /W astewater General Revenue Sharing Account Number: 003-9890-764-4400 Funds Available: XX Yes No Date -'ILITY EXTENSION AGREEaNT THE STATE OF TEXAS } COUNTY OF HARRIS } This agreement is made this 2ND of.JUNE 1998, by and between the City of La Porte, herein called "City", acting herein through its City Manager, and Bayou Apartments L.P., a Texas limited partnership, of Dallas, County of Dallas, State of Texas, hereinafter called " Developer. WITNESSETH Developer is the' owner of certain property in the City of La Porte, Harris County, Texas, identified as: 10.35 acres, more or less, in the W.P. Harris Survey, Abstract No. A-30, which has been submitted to the City as the LEGENDS OF SA YOU FOREST ,hereinafter referred to as the "Property". City utility mains do not presently extend to said Property. Developer has requested City to extend utility mains to serve Developer's said Property. City has employed the services of a competent, professional engineer, registered in the State of Texas. The City's engineer has prepared a Preliminary Engineering Report for a trunk sewer main and lift station facilities to serve undeveloped property in Southeast La Porte including Developer's Property . Developer shall immediately pursue (as provided for in the section of this Agreement identified as Interim Service), "Interim Service" from the City of Shoreacres to service the Property until such time as the trunk sewer main and lift station facilities are completed. TRUNK SEWER MAIN AND LIFf STATION FACILITIES 1. All references to "Utility Main(s)" hereunder shall, for the purposes of this Section, refer to a proposed 24-inch sewer trunk main, two sanitary sewer lift stations, a lO-inch and 14-inch sanitary sewer force main as shown on Exhibit "A". It is understood that the size and location C:/My DocumentslWater and Sewer/bayou forestUEA_980512 5 of these facilities . change as a result of the Prelimin.Engineering Report or Final Design. 2. City hereby agrees to construct and install utility main(s) to said proposed lift station site commencing at the nearest existing utility main(s) of sufficient size and capacity. Thence along/through City rights-of-way and/or easements to proposed lift station site. City shall be solely responsible for obtaining said additional rights-of-way and/or easements. Developer shall dedicate, or cause to be dedicated, by fee simple warranty deed, at no cost to City, a 60' by 60' lift station site adjacent to the south right-of-way line of McCabe Road and west of Taylor Bayou, and any necessary easements from the lift station site to the Property. This dedication shall take place within 60 (sixty) days of the execution of this Agreement and prior to the issuance of a building permit for Developer's multi-family project. 3. City agrees to pay for the construction and installation of said main(s) including necessary appurtenances. City further agrees to pay all engineering fees for survey, design, contact documents, bidding, construction staking, construction inspection, and preparation of Record drawings. 4. Developer agrees to pay, in the form of a certified check, the City for Utility Mains. The amount of such payment shall be equal to $119,500.00. Said $119,500.00 payment is the proportionate cost of the project that will serve undeveloped property in Southeast La Porte area. It is estimated that 9 % of the future wastewater flows being served by the herein- described utility mains, will come from Developer's 1O.35-acre multi-family development. $119,500.00 is 9% of the project cost, currently estimated to be $1,328,330.00. After completion of the construction of the utility mains, City's engineer will calculate a final proj~t cost. If the final project cost is less than the estimated project cost of $1,328,330.00, then 9% of the difference between the estimated project cost and final project cost will be refunded by the City to the Developer. 5. Subject to the provisions of this Agreement, City hereby agrees to construct and install utility main(s) according to the plans and specifications to be prepared by the City's engineer. When the City issues a building permit for Developer's multi-family project, Developer shall deposit with City in escrow a sum equal to fifty percent (50%) of the $119,500.00 as described in C:/My Documents/Water and Sewer/bayou forestUEA_980512 10 Article 4 above. w.n thirty (30) consecutive calendar dayar the City's authorization for City's contractor to begin construction of trunk sewer main and lift station facilities. Developer shall deposit with City in escrow a sum equal to fifty percent (50%) of the $119,500.00 as described in Article (4) above. 6. City agrees that connection charges for sanitary sewer shall be considered paid in full development of a 1O.35-acre site shown on Exhibit" A ", when the above payment has been made to City. Developer shall pay to City connection charges for water service for 1O.35-acres in the amount of 32,911.76. Payment of connection charges for water service shall be made when building permits are issued by the City for Developer's multi-family project. Developer shall be responsible for all other customary charges. 7. If City does not construct and install utility mains according to plans and specifications prepared by the City's engineer within sixty (60) months from the date the building permit is issued, City will refund the Developer the difference between the amount Developer has paid City for Wastewater facilities under this agreement and nine percent (9%) of the cost of the City's engineer in preparing plans and specifications for the construction of utility mains. INTERIM SERVICE 1. By separate agreement the Developer shall arrange for interim sewer service from the City of Shoreacres. Developer acknowledges that all issues and costs related to "Interim Service" are the responsibility of Developer. Developer agrees to pay for the construction and installation of a sewer main(s) and lift station facilities to connect the sewage outflow from the Property to the City of Shorea.cres mainline into the manhole on the north end of Bayou Forest Drive f~r transporting such sewage to the Gulf Coast Waste Disposal Facility. Such construction and installation shall include all necessary appurtenances. Developer further agrees to pay all engineering fees for survey, design, contract documents, bidding, construction staking, construction inspection, and preparation of "Record" drawings. 2. Developer shall furnish to City for review and approval an executed Agreement with Shoreacres prior to submission of the constmction plans and specifications for interim service. C:/My DocumentslWater and Sewer/bayou forestUEA_980512 5 e e 3. After plans and specification have been prepared by Deveoper's engineer and approved by City, the project shall be let for construction. Such plans and specifications shall not be approved by City until Developer furnishes City with evidence of the approval of such plans and specifications by the City of Shoreacres. 4. City shall not issue a building permit until the review and approvals referred to in paragraphs 2 and 3 have been completed, as well as all other normal and customary reviews required by the City. 5. Developer hereby acknowledges that all facilities constructed under this Section will not be City facilities and will be considered private facilities. Developer and/or his assigns shall be responsible for the perpetual maintenance, operation and upkeep. If City becomes involved in the maintenanC'..e, operation and upkeep of the sewer facilities, City shall have the right to bill the Developer to recover resources expended by City to maintain private facilities. 6. Developer agn~s that, in the future, when the City extends sewer facilities to the lift station site, the Developer shall connect to the sewer collection system and terminate the use of the private lift station and force main within thirty (30) days of notification by the City. C:/My Documents/Water and Sewer/bayou forestUEA_980S12 5 e e IN WITNESS WHEREOF, the Parties of these present have executed this Agreement in several counterparts, each of which shall be deemed and original, in the year and day first mentioned above. (Seal) CITY OF LA PORTE Attest: By~J)};t~jalf<tI/ Martha A. Gillett City Secretary By: G<~ T. ~ Robert T. Herrera City Manager (seal) OWNER: BAYOU APARTMENTS, L.P. STERLING DEVELOPMENT/BA YOU L.L.C., a Texas limited liability company, General Partner (Witness) fi;z;;;: Knox Askins City Attorney NOTE: City Secretary should attest: If owner is corporation, Secretary of Corporation should attest. . C:/My Documents/Water and Sewer/bayou torestUEA_980S12 10 DDD ~ ~ .. ~ BAY FOREST GOLF COURSE U) .q- z vi WHARTON WEEMS BLVD. DEVELOPER'S 10.35 AC. SITE BAY FOREST GOLF COURSE D N.T.S. i ~ "" CD LEGEND PROP. SAN. SEWER PROP. ~. SWR. FORCE MAIN --.......--.. PROP. UFT srAllON D EXHIBIT IIAII tlILITY EXTENSION AGREE.NT DRAFT THE STATE OF TEXAS } COUNTY OF HARRIS } This agreement is made this of . 1998, by and between the City of La Porte, herein called "City", acting herein through its City Manager, and Bayou Apartments L.P., a Texas limited partnership, of Dallas, County of Dallas, State of Texas, hereinafter called" Developer. WITNESSETH Developer is the owner of certain property in the City of La Porte, Harris County, Texas, identified as: 10.35 acres, more or less, in the W.P. Harris Survey, Abstract No. A-30, which has been submitted to the City as the . hereinafter referred to as the "Property". City utility mains do not presently extend to said Property. Developer has requested City to extend utility mains to serve Developer's said Property. City has employed the services of a competent, professional engineer, registered in the State of Texas. The City's engineer has prepared a Preliminary Engineering Report for a trunk sewer main and lift station facilities to serve undeveloped property in Southeast La Porte including Developer's Property . Developer shall immediately pursue (as provided for in the section of this Agreement identified as Interim Service), "Interim Service" from the City of Shoreacres to service the Property until such time as the trunk sewer main and lift station facilities are completed. TRUNK SEWER MAIN AND LIFT STATION FACILITIES 1. All references to "Utility Main(s)" hereunder shall, for the purposed of this Section, refer to a proposed 24-inch sewer trunk main, two sanitary sewer lift stations, a lO-inch and 14-inch sanitary sewer force main as shown on Exhibit" A ". It is understood that the size and location C:/My Documents/Water and Sewer/bayou torestUEA_980512 10 DRAFT of these faCilities. change as a result of the prelimin.Engineering Report or Final Design. 2. City hereby agrees to construct and install utility main(s) to said proposed lift station site commencing at the nearest existing utility main(s) of sufficient size and capacity. Thence along/through City rights-of-way and/or easements to proposed lift station site. City shall be. solely responsible for obtaining said additional rights-of-way and/or easements. Developer shall dedicate, or cause to be dedicated, by fee simple warranty deed, at no cost to City, a 60' by 60' lift station site adjacent to the south right-of-way line of McCabe Road and west of Taylor Bayou, and any necessary easements from the lift station site to the Property. This dedication shall take place within sixty (60) days of the execution of this Agreement and prior to the issuance of a building permit for Developer's multi-family project. 3. City agrees to pay for the construction and installation of said main(s) including necessary appurtenances. City further agrees to pay all engineering fees for survey, design, contract documents, bidding, construction staking, construction inspection, and preparation of Record drawings. 4. Developer agrees to pay, in the fonn of a certified check, the City for Utility Mains. The amount of such payment shall be equal to $119,500.00. Said $119,500.00 payment is the proportionate cost of the project that will serve undeveloped property in Southeast La Porte area. It is estimated that 9 % of the future wastewater floes being served by the herein- described utility mains, will come from Developer's 1O.35-acre multi-family development. $] 19,500.00 is 9% of the project cost, currently estimated to be $1,328,330.00. After completion of the construction of the utility mains, City's engineer will calculate a final project cost. If the final project cost is less than the estimated project cost of $1,328,330.00, then 9% of the difference between the estimated project cost and final project cost will be refunded by the City to the Developer. 5. Subject to the provisions of this Agreement, City hereby agrees to construct and install utility main(s) according to the plans and specifications to be prepared by the City's engineer. When the City issues a building pennit for Developer's multi-family project, Developer shall deposit with City in escrow a sum equal to fifty percent (50%) of the $119,500.00 as described in C:/My Docum"nts/Water and Sewerlbayou forestUEA_980512 10 UKAr I Article 4 above. W_ thirty (30) ~ consecutive calendar. after the City's authorization for City's contractor to begin construction of trunk sewer main and lift station facilities. Developer shall deposit with City in escrow a sum equal to fifty percent (50%) of the $119,500.00 as described in Article (4) above. 6. City agrees that connection charges for sanitary sewer shall be considered paid for full development of a 1O.35-acre site shown on Exhibit "A", when the above payment has been made to City. Developer shall pay to City connection charges for water service for 10.35-acres in the amount of $32,911.76. Payment of connection charges for water service shall be made when building permits are issued by the City for Developer's multi-family project. Developer shall be responsible for all other customary charges. 7. If City does not construct and install utility mains according to plans and specifications prepared by the City's engineer within sixty (60) months from the date the building permit is issued, City will refund the Developer the difference between the amount Developer has paid City for Wastewater facilities under this agreement and nine percent (9%) of the cost of the City's engineer in preparing plans and specifications for the construction of utility mains. INTERIM SERVICE 1. By separate agreement the Developer shall arrange for interim sewer service from the City of Shoreacres. Developer agrees to acknowledge that all issues and costs related to "Interim Service" are the responsibility of Developer. Developer agrees to pay for the construction and installation of a. sewer main(s) and lift station facilities to connect the sewage outflow from the Property of the City of Shoreacres mainline into the manhole on the north end of Bayou Forest Drive for transporting such sewage to the Gulf Coast Waste Disposal Facility. Such construction and installation shall include all necessary appurtenances. Developer further agrees to pay all engineering fees for survey, design, contract documents, bidding, construction staking, construction inspection, and preparation of "Record" drawings. 2. Developer shall furnish to City for review and approval an executed Agreement with Shoreacres prior to submission of the construction plans and specifications for interim service. C:/My Documents/Water and Sewerlbayou forestUEA_980512 10 e e DRAFT 3. After plans and specifications have been prepared by Developer's engineer and approved by City, the project shall be let for construction. Such plans and specifications shall not be approved by City until Developer furnishes City with evidence of the approval of such plans and specifications by the City of Shoreacres. 4. City shall not issue a building permit until the review and approvals referred to in paragraphs 3 and 4 have been completed, as well as all other normal and customary reviews required by the City. 5. Developer hereby acknowledges that all facilities constructed under this Section will not be City facilities and will be considered private facilities. Developer and/or his assigns shall be responsible for the perpetual maintenance, operation and upkeep. If City becomes involved in the maintenance, operation and upkeep of the sewer facilities, City shall have the right to bill the Developer to recover resources expended by City to maintain private facilities. 6. Developer agrees that, in the future, when the City extends sewer facilities to the lift station site, the Developer shall connect to the sewer collection system and terminate the use of the private lift station and force main within thirty (30) days of notification by the City. C:/My Documents/Water and Sewer/bayou forestUEA_980S12 10 e e DRAFT IN WITNFSS WHEREOF, the Parties of these present have executed this Agreement in several counterparts, each of which shall be deemed and original, in the year and day first mentioned above. (Sean CITY OF LA PORTE Attest: By: Martha A. Gillett City Secretary By: Robert T. Herrera City Manager (seal) OWNER: BAYOU APARTMENTS, L.P. STERLING DEVELOPMENT/BA YOU L.L.C., a Texas limited liability company, General Partner (Witness) By: Jim Clifton, President 5703 Covehaven Dr. Dallas, Texas 75252 Approved as to Fonn: Knox Askins City Attorney NOTE: City Secretary should attest: If owner is corporation, Secretary of Corporation should attest. C:/My Documents/Water and Sewer/bayou torestUEA_980S12 10 . . -- . (Seal) OWNER: BAYOU APARTMENTS, LoP. ~ STERLlNGDBVBLOPMBNl'/BAYOU,LL.c., . TCDI HmitM liability ClGIDpIIly, GcaaIl PI&tIIer (WitDen) Br.~a ",'N\. C~ J M. CIiftaD, PRI8idIIIIt 5703 CoYdaavaa Dr. DaUu, 'IX 7S2S2 Approved. to FODD: Knox Askias CitJ Aaoracy N~ta: City Secrerary sIIauJd att.est: !fawn.. ill a COIpGIItioD. Secrerary ofCm.,alatiOll should aIcIt. IfC)OSo.I'4IBItOHB\S'I'&YOUW11U1'YuaJ' 'Il"'MY .'M"Y' RX"I"P.N:Al'nw AAR'RRM'RN"I' . .... .6 CD .... - :i en c,s c,s .. ~ BAY FOREST GOLF COURSE ~ ~ WHARTON WEEMS BLVD. DEVELOPER'S 10.35 AC. SITE BAY FOREST GOLF COURSE N.T.S. ~ 31: ~ a:: III DRAFT LEGEND PROP. SAN. savER JlIlllP. sa .. RIlCE 1M ------.-..--- JlIlllP. Iff STA1IllI 1:1 EXHIBIT .A. .____.___.._____._... ~ ~ I . -. ...... -w-....... - -.... .. -.. -........... e ............ ...... . I ... . . 04/2E"19'3a 09: 38 12S1461 seal BAYOU FIJREST ... ....... -~~~ --~~.--.- City of Shoreacres 601 SHOREACRES BOULEVARD SHORtACRES, TEXAS Tt57t PHONE (281) 471-2244 r AX (281) 471-8953 . . , -A C;OM~IVNITY Of BEAUTlruL ItOMES ON CALVESTON 8A'''- HOMt or THE KOUSTON YACHT CLUB MAYOR Wayne GiJmble CITY SECRETARY Mic:hcle L, CraKt April 17. 1998 Bayou A~artm,nts, l,P. Ann.: Jim Clifton P.O.Box 1~~6 La Port" Texas 77571 Oelt Sir: At the City Council Meeting held AtlrU 13, 1996 for the City of Shoreaeres. Texas It was unanimously voted and approved to allow Bayou Apartments L.P, to cOl"1nect their sewage outflow to the City's mainline Into the manhole on the north end of Bayou Forest Drive. This Is the Citts main gravity line transporting sewage to the Gulf Coast Waste Disposal Facility, Thl$ approval's granted only on a temporary basis. When the City of La Porte's mainline has been Inatalled In accordance wl1h their Project No, 13-14501-001 the line must be disconnected and removed, The terms of the agreement shall be by contract similar to the contract between the city of Shoreacres and Bayshore Industries presently In existence, This contract wilt eover fees and Inspections by the City and their utility department. . ,=7"':. I I . i !( The above mentloned contract will be drawn as soon as the City of LaPorte requests Tee. . their engineering firm, to proceed to the drafting of wO.~~!!lg drawings for the main sewer Une. ::~~.:~ ~;t".\~~ Respectfully, W~N-. City of Shoreacres, Texas e e City of Shoreacres Minutes of April 13, 1998 Page 3 4.3 Consider/Approve Preliminary Plat for replat of a Portion of Bayou Forest, Section 1. Request to subdivide the this property into two (2) lots for single family housing and a park. Mr. Miller requested the City allow the replat of the above property. He stated that the park would be for residence of the Bayou Forest Subdivision only and would have a limited access gate. The upkeep would be solely the responsibility of the Bayou Forest Homeowner's Association for upkeep. He commented on the concerns of the La Porte Fire Chief in regards to the distance between the park and right of way for fire trucks to have access to the park. The two lots for single family housing and park would replace the original plat of fourteen (14) single family houses. Alderman Maher questioned Mr. Miller on Access to the Park. Alderman Shaffer stated that the City would not get taxes from a park. Mayor Gamble was concerned with parking. He asked Mr. Miller about a portion of this property that was owned by the city. Mr. Miller was unaware that the City owned any of this property. Moved by Alderman Shaffer and seconded by Alderman Becker to disapprove at this time until further investigation as to the portion of Oakleaf Circle being City Right of Way and therefore owned by the City of Shoreacres. MOTION TO DISAPPROVE CARRIES BY UNANIMOUS CONSENT. 4.4 Review/Considerlimit of 2 terms maximum in a municipal office. Alderman Shaffer said that without a limit to the terms in office, it discour~ges other incumbents. Moved by Alderman Shaffer. MOTION FAILS DUE TO LACK OF A SECOND .,.!;;.;,' -."".... .:).:. 5.1 ~~~t'.' 52 .i!,. . ..{',,;.:-~ .0... '.. OLD BUSINESS Consider/Approve Proposed Contract between the City of Shoreacres and Bayou Apartments, L.P. to allow the city to provide sanitary sewage disposal for the apartments constructed on McCabe Rd., La Porte Mr. Cooke explained that the City of La Porte would not have sewer capacity available for a few months after construction of the apartments .' .e e City of Shoreacres Minutes of April 13, 1998. Page 4 he is constructing in La Porte. There would be approximately four (4) or five (5) buildings built before La Porte would be able to supply his sewage. He must meet a deadline with the Housing and Urban Development within two weeks that the City of Shoreacres would allow Bayou Apartments, loP. to connect their sewage outflow to the City's mainline. The usage of sewage would be approximately 14,000 gallons which is 1.8 % of the City's capacity. Alderman Becker stated that Phase 1 was being voted on in La Porte tonight. . Moved be Alderman Becker and seconded by Alderman Apel to approve the Proposed Contract contingent on the City of La Porte voting to supply permanent sewage to the Bayou Apartments, loP., a mutually agreed contract, and the closing and removal of the line after the apartments were attached with La Porte. MOTION CARRIES BY UNANIMOUS CONSENT Upon motion, Mayor Gamble adjourned the meeting. Approved this ,;2..7 day of , t // amble,l Mayor f {I .c- "ari Tait City Secretary '-- e e REQrAT FOR CITY COUNCIL AG.DA ITEM Agenda Date Requested: May 18, 1998 Requested By: Guy Rankin / Doug Knoupper J( Report Resolution Department: Planning xxx Ordinance Exhibits: Ordinance Agreement Between Owner and Engineer Summary & Recommendation On July 7, 1997, Council approved a Special Conditional Use Permit for a 176 unit apartment project located at the corner of SH146 and McCabe Road. Sanitary sewer service is currently not available in this area of LaPorte. On September 8, 1998, Council approved an agreement with the engineering firm of Turner Collie & Braden to prepare a Preliminary Design Report for Sanitary Sewer Facilities to serve undeveloped areas of Southeast La Porte. The report is complete and staff has reviewed the alternatives and recommendations described in the report. The estimated construction cost for the new sewer trunk main and lift stations is $1,155,070. Staff has requested that TC&B submit a Proposal to provide engineering services for the final design, and construction documents for the new sewer trunk main and lift stations. TC&B' s proposed fee fOf this phase of the project is a lump sum amount of $146,000 which includes the Engineer's basic services, reimbursable expenses, $42,790 for surveying by H. Carlos Smith, and $10,900 for Geotechnical investigation. Staff has also requested that TC&B estimate a fee to provide full time inspection of the construction. This service is estimated to cost $68,850 but will be cal~lated and billed at an hourly rate for time actually spent on the project. This service will require future authorization by the City and is not included in the lump sum amount above. The recommended source of funds for the design and construction documents phase is from the available working capital balance in the Utility Fund. On September 8, 1997, the City Council passed Resolution 97-07. This resolution allows the City to reimburse itself from a future bond sale. Also, if approved by Council, the expected revenue received from the Bayou Forest Apartments Utility Extension Agreement can be applied towards this project. Action Required !by Council: Consider approving an ordinance authorizing the City Manager to execute an Agreement Between Owner and Engineer for Professional Services with Turner Collie & Braden, Inc. to provide funding for engineering services for the final design and construction documents for sanitary sewer facilities and also provide construction inspection services if authorized. e e' Availability of Funds: General Fund XX Capital Improvement Other Water /W astewater General Revenue Sharing Account Number: 003-9890-764-4400 Funds Available: XX Yes No Council Agenda ;tl f;'f /19 Die e '.~ . ORDINANCE NO. 98- 2237 AN ORDINANCE APPROVING AND AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND TURNER, COLLIE 1& BRADEN, INC., TO PROVIDE PROFESSIONAL ENGINEERING SERVICES FOR FINAL DESIGN AND CONSTRUCTION CONTRACT DOCUMENTS OF SANITARY SEWER FACILITIES; APPROPRIATING NOT TO EXCEED $146,000.00 TO FUND SAID CONTRACT; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING. AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, in substantially the form as shown in the document which is attached hereto and incorporated herein by this reference. The City Manager is hereby authorized to execute such document and all related documents on behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affIx the seal of the City to all such d.ocuments. The City Council appropriates the sum not to exceed $146,000.00 from Utility Capital Improvement Fund 003 to fund said contract.. Section 2. The. City Council officially fInds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been e e ORDINANCE NO. 98- 2237 open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 3. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. PASSED AND APPROVED, this 18th day of May, 1998. ~I OF LA PORTE By: ~~~ orman L. Malone, Mayor ATIEST: ~~;4~ a Gillett City Secretary e e DUE TO THE LENGTH OF THE DOCUMENT, ENCLOSED YOU WILL FIND EXHrBITS A (ENGINEER'S SERVICES) AND C (pAYMENTS FOR SERVICES). A COMPLETE COpy OF THE AGREEMENT WILL BE IN THE CITY SECRETARY'S OFFICE IN CASE YOU WANT TO REVIEW. WE FOLLOW THE STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES. e e This is EXHIBIT A, consisting of 7 pages, referred to in and part of the Agreement between OWNER and ENGINEER Cor ProCessional Services dated Initial: OWNER ENGINEER ~ ENGINEER's Services Article I of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART I - BASIC SERVICES A1.01 Study and Report Phase - NOT INCLUDED A 1.02 Preliminary Design Phase - NOT INCLUDED A1.03 Final Design Phase A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER-directed modifications or changes in the scope, extent, character, oi' design requirements of or for the Project, and upon written authorization from OWNER, ENGINEER shall: 1. On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be prepared, where appropriate, in general conformance with the 16-division format of the Construction Specifications Institute. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for pennits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities. 3. Advise OWNER of any adjustments to the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER, itemized as provided in paragraph Al.OIA.5. 4. Perform or provide the following additional Final Design Phase tasks or deliverables: S. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 6. Submit 20 fmal copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within 90 working days after authorization to proceed with this phase. B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more than one prime contracl~ or if ENGINEER's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast-tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for perfonnance of ENGINEER's services during the Final Design, Bidding or Negotiating, Construction, and Post-Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exhibit A whether or not the work under such contracts is to proceed concurrently. Page I of 7 Pages (Exhibit A - ENGINEER's Services) e . C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGINEER's compensation has been established under this Agreement is one (1). D. ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by pamgraph A1.03.A.6 have been delivered to OWNER. Al.04 Bidding or Nc.-gotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent oplDlon of probable Cons1ruction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where applicable, maintain a record of prospective bidders to whom Bidding Documents have been issued, attend pre-Bid conferences, if any, and receive and process Contractor deposits or charges for the Bidding Documents. 2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. 3. During the Bidding or Negotiating Phase ENGINEER shall assist OWNER in conducting the prebid conferences and prequalification of bidders as required by City of La Porte Ordinance No_ 1476-A. Ordinance 1476-A requires all Contractors desiring to bid on constnlction projects having as estimated construction cost of greater than $300,000, must pre-qualify by filing a satisfactory Contractor's Statement The Contractor's Statement requires the filing of both a Financial Statement and an Equipment and Experience Statement The ENGINEER shall review the Equipment and Experience Statements submitted by the Contractor, check references and prepare a written report and recommendation based on their fmdings. The ENGINEER shall not be responsible for evaluating the financial statement submitted by Contractors. 4. Perform (lr provide the following additional Bidding or Negotiating Phase tasks or deliverables: 5. Attend the Bid opening, prepare Bid tabulation sheets, and assist OWNER in evaluating Bids or proposals and in assembling and awarding contracts for the Work. B. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective Contractors (except as may be required if Exlnbit F is a part of this Agreement). A1.05 Construction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to C;:ontractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. Resident Project Representative (RPR). Provide the services of an RPR at the Site to assist the ENGINEER and to provide more extensive observation of Contractor's work. Duties, responsibilities, and authority of the R'PR are as set forth in Exlnbit D. The furnishing of such RPR's services will not extend ENGINEER's respl)nsibilities or authority beyond the specific limits set forth elsewhere in this Agreement. 3. Selecting .Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01.0. Page 2 of 7 Pages (Exhibit A - ENGINEER's Services) e e 4. Pre-Construction Conference. Participate in a Pre-Construction Conference prior to commencement of Work at the Site. S. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 6. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. 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 Work. Such visits and observations by ENGINEER, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, ENGINEER will determine in general if Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the Work. b. The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, 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 the 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 will conform in general to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. ENGINEER shall not, during such visits or as a result of such observalions 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 of construction selected by Contractor, for safety precautions and programs incident to Contractor's worle, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 7. Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, ENGINEER believes that such work will not produce a completed Project that COnfonns generally to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 8. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 9. Change Orders and Work Change Directives. Reconunend Change Orders and Work Change Directives to O~R, as appropriate, and prepare Change Orders and Work Change Directives as required. 10. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and SaIl:tples and other data which Contractor is required to submit, but only for conformance with the infonnation given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. Page 3 of 7 Pages (Exhibit A - ENGINEER's Services) e e 11. Substitutes and "or-equal." Evaluate and determine the acceptability of substitute or "or-equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.02.A.2 of this Exln'bit A. 12. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. 13. Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor and shall not be liable in connection with any decision rendered in good faith in such capacity. 14. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER, based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of the 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), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph Al.Os.A.6.a are expressly subject to the limitations set forth in paragraph Al.Os.A.6.b and other express or genera1limitations in this Agreement and elsewhere. b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented that observations made by ENGINEER to check the quality or quantity of Contractor's work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including fmal payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, 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. 15. Contractor's Completion Documents. a. Receive and review maintenance and operating instructions, schedules, and guarantees. b. Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph Al.Os.A.IO, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain fmal payment. The extent of such ENGINEER's review will be limited as provided in paragraph Al.Os.A.IO. Page 4 of 7 Pages (Exhibit A - ENGINEER's Services) e e c. ENGINEER shall transmit these documents to OWNER. 16. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER considers the Work Substantially Complete, ENGINEER shall deliver a certificate of Substantial Completion to OWNER and Contractor. 17. Additional Tasks. PerfOIDl or provide the following additional Construction Phase tasks or deliverables: 18. Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend, in Writing, final payment to Contractor. Accompanying the recommendation for final payment, ENGINEER shall also provide a notice in the fOIDl attached hereto as Exlnbit E (the "Notice of Acceptability of Work") that the Work is acceptable (subject to the provisions of paragraph A1.0S.A.14.b) to the best of ENGINEER's knowledge, information, and belief and based on the extent of the services provided by ENGINEER under this Agreement 19. Record Drawings. Prepare and furnish to Owner Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon written recommendation by ENGINEER for final payment to Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.03.C, Co:nstruction Phase services may be rendered at different times in respect to the separate contracts. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of their subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perfoIDl or furnish the Work in accordance with the Contract Documents. A 1.06 Post-Construction Phase - NOT INCLUDED PART 2 - ADDmONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance A. If authorized in writing by OWNER. ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of enviro1iinental assessments and impact statements; review and evaluation of the effects on the design requirements for th'e Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in size, complexity, OWNER's schedule, character of construction, or method of financing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement or are due to any other causes beyond ENGINEER's control. Page 5 of 7 Pages (Exhibit A - ENGINEER's Services) It e 4. Services resulting from OWNER's request to evaluate additional Study and Report Phase altemative solutions beyond those identified in paragraph Al.Ol.AA. S. Services required as a result of OWNER's providing incomplete or incoITect Project infonnation with respect to Exh1bit B. 6. Providing renderings or models for OWNER's use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by OWNER. 8. Fwnishing services of ENGINEER's Consultants for other than Basic Services. 9. Services attnbutable to more prime construction contracts than specified in paragraph Al.03.C. 10. Services during out-of-town travel required of ENGINEER other than for visits to the Site or OWNER's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and construc1lbility review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by OWNER for the Work or a portion thereof. 13. Determining the acceptability of substitute materials and equipment proposed during the Bidding or Negotiating Phase when substitution prior to the award of contracts is allowed by the Bidding Documents. 14. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by E~bit F. 15. Providing construction surveys and staking to enable Contractor to perform its work other than as required under paragraph Al.OS.A.S, and any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 16. Providing Construction Phase services beyond the Contract Times set forth in Exlnbit C. 17. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current' Laws and Regulations. 18. Preparation of operation and maintenance manuals. 19. Preparing to serve or serving as a consultant or wibless for OWNER in any litigation, arbitration or other dispute resolution process related to the Project. 20 Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.01.G of the Agreement. 21. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. Page 6 of 7 Pages (Exhibit A - ENGINEER's Services) e e A2.02 Required Additional Services A. ENGINEER shall perfonn or furnish, without requesting or receiving specific advance authorization from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing promptly after starting any such Additional Services. 1. Services in connection with Work Change Directives and Change Orders to reflect changes requested by OWNER so as to make the compensation commensurate with the extent of the Additional Services rendered. 2. Services :in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than "or-equal" items; and services after the award of the Construction Agreement in evaluating and determining the acceptability of a substitution which is found to be inappropriate for the Project or an excessive number of substitutions. 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) an occmrence of a Hazardous Environmental Condition, (3) Work damaged by fire or other cause during construction, (4) a significant amount Qf defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. .. S. Services (other than Basic Services during the Post-Construction Phase) in connection with any partial utilization of any part of the Work by OWNER prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. Page 7 of 7 Pages (Exhibit A - ENGINEER's Services) . - This is EXHIBIT C, consisting of 5 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated _, _ Initial: OWNER ENGINEER ~ Payments to ENGINEER for Services and Reimbursable Expenses. Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: of the total services actually completed during the billing period to the Lump Sum. ARTICLE 4 - PAYMENTS TO THE ENGINEER 5. The Lump Sum is conditioned on Contract Times to complete the Work not exceeding 7 months. Should the Contract Times to complete the Work be extended beyond this period, the total co~pensation to ENGINEER shall be appropriately adjusted. C4.01 For Basic Services Having A Detennined Scope -Lump Sum Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A, except for services of ENGINEER's Resident Project Representative and Post-Construction Phase services, if any, as follows: 1. A Lump Sum amount of $146,000 based on the following assumed distribution of compensation: 6. If more prime contracts are awarded for Work designed or specified by ENGINEER for this Project than identified in Exhibit A, the ENGINEER shall be compensated an additional amount to be determined by ENGINEER and OWNER for all Basic Services for each prime contract added. a. S~dy and Report Phase b. Preliminary Design Phase c. Final Design Phase d. Bidding and Negotiating Phase e. Construction Phase nla nla $122,100 $6,000 $17,900 2. ENGINEER may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amount unless approved in writing by the OWNER. 3. The Lump Sum includes compensation for ENGINEER's services and services of ENGINEER's Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for labor, overhead, profit, and Reimbursable Expenses. 4. The portion of the Lump Sum amount billed for ENGINEER's services will be based upon ENGINEER's estimate of the proportion Page I of 5 pages . (Exhibit C - Basic Services With Determined Scope -- Lump Sum Method) . C4.02 For Basic Services Having An Undetermined Scope - Standard Hourly Rates Method of Payment A. OWNER shall pay ENGlNEER for Basic Services having an undetermined scope as follows: 1. Resident Project Representative Services. For services of ENGINEER's Resident Project Representative, if any, under paragraph A1.0SA.2.a of Exhibit A, an amount equal to the cumulative hours charged to the Project. by each class of ENGINEER's employees .times .Standard Hourly Rates for each applicable billing class for all Resident Project Representative services performed on the Project, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. The total compensation under this paragraph is estimated to be $68,850. The .basis of compensation for Resident Project Representative Services is summarized in Exhibit 1. 2. Post Construction PhIlse Services- NOT INCLUDED C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. General. For services of ENGINEER's employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under paragraph A2.0l.A.20, an amount equal to the cumulative hours charged to the Project by each class of ENGINEER's employees times Standard Hourly Rates for each applicable billing class for all Additional Services performed on the Project, plus Reimbursable Expenses and' ENGINEER's Consultant's charges, if any. 2. Serving as a Witness. For services performed by ENGINEER's employees as witnesses giving testimony in any litigation, arbitration, or other legal or administrative proceeding under paragraph A2.01.A.20, at the rate of $1,000 per day or any portion thereof (but compensation for time spent in preparing to testify in any such litigation, arbitration, or proceeding will be on the basis provided in e paragraph C4.03.A.l). Compensation for 'ENGINEER's Consultants for such services will be on the basis provided in paragraph C4.06. C4.04 For Reimbursable Expenses A. When not included in compensation for Basic Services under paragraph C4.01, OWNER shall pay ENGINEER for Reimbursable Expenses at the rates set forth in Appendix 1 to this Exhibit C. B. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; obtaining bids or proposals from Contractor(s); providing and maintaining field office facilities including furnishings and utilities; subsistence and transportation of Resident Project Representative and their assistants;. toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project-related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER, overtime work requiring higher than regular rates. In addition, if authorized in advance by OWNER, Reimbursable Expenses will also include expenses incurred for computer time and the use' of other highly specialized equipment. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Project-related internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of 1.1. D. The Reimbursable Expenses Schedule will be adjusted annually (beginning 1 year from the effective date of this Agreement) to reflect equitable changes in the compensation payable to' ENGINEER. C4.0S Standard Hourly Rates A. Standard Hourly Rates are set forth in Appendix 2 to this Exhibit C and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non-project operating costs, and operating margin or profit. B. The Standard Hourly Rates will be adjusted annually (beginning 1 year from the effective date Page 2 of 5 pages (Exhibit C - All Other Services/Charges - Standard Hourly Rates Method of Payment) . e of this Agreement) to reflect equitable changes in the compensation payable to ENGINEER. shall either agree to such compensation exceeding said estimated amount or OWNER and ENGINEER shall agree to a reduction in the remaining services to be rendered by ENGINEER, so that total compensation for such services will not exceed said estimated amount when such services are completed. If ENGINEER exceeds the estimated amount before OWNER and ENGINEER have agreed to an increase in the compensation due ENGINEER or a reduction in the remaining services, the ENGINEER shall be paid for all services rendered hereunder. C4.06 For ENGINEER's Consultant's Charges A. Whenever compensation to ENGINEER herein is stated to include charges of ENGINEER's Consultants, those charges shall be the amounts billed by ENGINEER's Consultants to ENGINEER times a Factor of 1.1. C4.07 Factors A. The external Reimbursable Expenses and ENGINEER's Consultant's Factors include ENGINEER's overhead and profit associated with ENGINEER's responsibility for the administration of such services and costs. C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for ENGINEER's services which are related to the services identified in paragraphs C4.02 and C4.03, will be during the billing period based on the cumulative hours charged to the Project by each class of ENGINEER's employees times the Standard Hourly Rate for each class plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. B. Extended Contract Times. Should the Contract Times to complete the Work be extended beyond the period identified in paragraph C4.01, payment for ENGINEER's services shall be continued based on the Standard Hourly Rates Method of Payment. C. Estimated Compensation Amounts 1. ENGINEER's estimate of the amounts that will become payable for Basic Services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or m<lXimum amounts payable to ENGINEER under the Agreement. 2. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to ENGINEER that a compensation amount thus estimated will be exceeded, ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and ENGINEER shall review the matter of services remaining to be performed and compensation for such services. OWNER Page 3 of 5 pages (Exhibit C - All Other Services/Charges -- Standard Hourly Rates Method of Payment) e Reimbursable Expenses Schedule e This is Appendix 1 to EXBIBIT C, consisting of 5 pages, referred to in and part bf the Agreement between OWNER and ENGINEER Cor ProCessional Services dated Initial: OWNER ENGINEER ~ Current agreements for engineering services stipulate that the Reimbursable Expenses are subject to review and adjustment per Exhibit C. Reimbursable expenses for services perfonned on the date of the Agreement are: FAX B"x!!" CopieslImpression Blue Print Copies Reproducible Copies (Mylar) Reproducible Copies (paper) Mileage (auto) Field Tmck Daily Charge Mileage (Field Tmck) Field Survey Equipment Confined Space Equipment Resident Project Representative Equipment Computer CPU Charge Personal Computer Charge CAD Charge CAE Terminal Charge VCR and Monitor Charge Video Camcorder E]ectrical Meters Charge Flow Meter Charge Rain Gauge Sampler Charge Dissolved Oxygen Tester Charge Fluorometer Laboratory Pilot Testing Charge Soil Gas Kit Submersible Pump Water Level Meter Soil Sampling Groundwater Sampling Health and Safety Level D Health and Safety Level C Electronic Media Charge Long Distance Phqne Calls Meals and Lodging nJa SO.04/page SO.06/sq. ft. SO.9S/sq. ft. SO.90/sq. ft. SO.32S/mile nJa nJa at cost at cost nJa nJa nJa SlS.00/hour at cost nJa nJa at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost Page 4 of 5 pages (Exhibit C - All Other Services/Charges -- Standard Hourly Rates Method of Payment) e e This is Appendix 2 to EXHIBIT C, consisting of 5 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated Initial: OWNER ENGINEER ~ Standard Hourly Rates Schedule Current agreements for engineering services stipulate that the standard hourly rates are subject to review and adjustment per Exhibit: C. Hourly rates for services performed on the date of the Agreement are: Principal $ISO/hour Project Manager Electrical Engineer 'Structural Engineer $110/hour Mechanical Engineer Civil Engineer/Designer Project Representative $85/hour CADD Technician $65/hour Administrative $50/hour Page 5 of 5 pages (Appendix 2 to Exhibit C - Standard Hourly Rates Schedule) e e AGREEMENT BETWEEN OWNER AND ENGINEER FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT effective as of ~. ~("Effective Date") between the City of La Porte, Texas ("OWNER") and Turner Collie & Braden Inc. ("ENGINEER"). OWNER intends to construct Lift Station 12A, Lift Station 6A, approximately 5,500 linear feet (Lf.) of 24-inch gravity sewer, 1,500 Lf. of 14-inch force main, and 2,700 Lf. of to-inch force main to provide wastewater collection service to areas located in the southeast portion of the City of La Porte ("Project"). Design will be in general conformance with the Preliminary Design Report "Southeast Sanitary Sewer Trunk Main and Lift Station Facilities" prepared by Engineer and delivered to Owner December 1997. OWNER and ENGINEER in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Engineer for Professional Services Page 1 of 12 e : ARTICLE 1 - SERVICES OF ENGINEER 1.01 Scope A. ENGINEER shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as set forth in Exhibit A. C. If authorized by OWNER, ENGINEER shall furnish Resident Project Representative(s) with duties, responsibilities and limitations of authority as set forth in Exhibit D. ARTICLE 2 - OWNER'S RESPONSmILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exlubit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. ENGINEER's services and compensation under this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion. Unless specific periods of time or specific dates for providing services are specified in this Agreement, ENGINEER's obligation to render services hereunder will be for a period which may reasonably be required for the completion of said services. . B. If in this Agreement specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided, and if such periods of time or dates are changed through no fault of ENGINEER, the rates and amounts of compensation provided for herein shall be subject to equitable adjustment. If OWNER has requested changes in the scope, extent, or character of the Project, the time of performance of ENGINEER's services shall be adjusted equitably. C. For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension e A. If OWNER fails to give prompt written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if ENGINEER's services are delayed through no fault of ENGINEER, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Agreement. B. If ENGINEER's services are delayed or .suspended in whole or in part by OWNER, or if ENGINEER's services are extended by Contractor's actions or inactions for more than 90 days through no fault of ENGINEER, ENGINEER shall be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by ENGINEER in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 - PAYMENTS TO ENGINEER 4.01 Methods of Payment for Services and Reimbursable Expenses of ENGINEER A. For Basic Services. OWNER shall pay ENGINEER for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay ENGINEER for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C. For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.01.B, OWNER shall pay ENGINEER for Reimbursable Expenses incurred by ENGINEER and ENGINEER's Consultants as set forth in Exhibit C. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with ENGINEER's.' standard invoicing practices and will be submitted to OWNER by ENGINEER, unless otherwise agreed. The .amount billed in each invoice will be calculated as set forth in Exhibit C. B. Payment of Invoices. Invoices are due and payable within 30 days of receipt. If OWNER fails to make any payment due ENGINEER for services and expenses within 30 days after receipt of ENGINEER's invoice therefor, the amounts due ENGINEER will be increased at the rate of 1.0% per month (or the maximum rate of interest permitted by law, if less) from said thirtieth day. In addition, ENGINEER may, after giving seven days written notice to OWNER, suspend services under this Standard Form of Agreement Between Owner and Engineer for Professional Services Page 2 of 12 e Agreement until ENGINEER has been paid in full all amounts due for services, expenses, and other related charges. Payments will be credited first to interest and then to principal. C. Disputed Invoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. 1. In the event of any termination under paragraph 6.06, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. In the event of termination by OWNER for convenience or by ENGINEER for cause, ENGINEER, in addition to invoicing for those items identified in subparagraph 4.02.0.1, shall be entitled to invoice OWNER and shall be paid a reasonable amount for services and expenses directly attributable to tennination, both before and after the effective date of termination, such as reassignment of personnel, costs of tenninating contracts with ENGINEER's Consultants, and other related close-out costs, using methods and rates for Additional Services as set forth in Exhibit C. E. Records of ENGINEER's Costs. Records of ENGINEER's costs pertinent to ENGINEER's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. To the extent necessary to verify ENGINEER's charges and upon OWNER's timely request, copies of such records will be made available to OWNER at cost. F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on ENGINEER's services or other costs in connection with this Project or compensation therefor,such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to ENGINEER's estimated total compensation. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost - A. ENGINEER's opinions of probable Construction Cost provided for herein are to be made on the basis of ENGINEER's experience and qualifications and represent ENGINEER's best judgment as an experienced and qualified professional generally familiar with the industry. However, since ENGINEER has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, ENGINEER cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by ENGINEER. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 Designing to Construction Cost Limit-NOT INCLUDED 5.03 Opinions of Total Project Costs A. ENGINEER assumes no responsibility for the accuracy of opinions of Total Project Costs. ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. The standard of care for "all professional engineering and related services performed or furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by members of ENGINEER's profession practicing under similar circumstances at the same time and in the same locality. ENGINEER makes no warranties, express or implied, under this Agreement or otherwise, in connection with ENGINEER's services. B. ENGINEER shall be responsible for the technical accuracy of its services and documents resulting therefrom, and OWNER shall not be responsible for discovering deficiencies therein. ENGINEER shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER-furnished information. C. ENGINEER shall perform or furnish professional engineering and related services in all phases of the Project to which this Agreement applies. ENGINEER shall serve as OWNER's prime professional for the Project. ENGINEER may employ such ENGINEER's Consultants as ENGINEER deems necessary to assist in the performance or furnishing of the services. ENGINEER shall not be required to employ any ENGINEER's Consultant unacceptable to ENGINEER. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 3 of 12 e D. ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER-mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to ENGINEER's scope of services, times of perfonnance, or compensation. E. OWNER sball be responsible for, and ENGINEER may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other infonnation furnished by OWNER to ENGINEER pursuant to this Agreement ENGINEER may use such requirements, reports, data, and infonnation in performing or furnishing services under this Agreement. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of ENGINEER. G. Prior to the (:ommencement of the Construction Phase, OWNER shall notify ENGINEER of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that ENGINEER will be requested to provide to OWNER or third parties in connection with the Project. OWNER and ENGINEER shall reach agreement on the terms of any such requested notice or certification, and OWNER shall authorize such Additional Services as are necessary to enable ENGINEER to provide the notices or certifications requested. H. ENGINEER shall not be required to sign any documents, no matter by whom requested, that would result in the ENGINEER's having to certify, guarantee or warrant the existence of conditions whose existence the ENGINEER cannot ascertain. OWNER agrees not to make resolution of any dispute with the ENGINEER or payment of any amount due to the ENGINEER in any way contingent upon the ENGINEER's signing any such certification. I. During the Construction Phase, ENGINEER shall not supervise, direct, or have control over Contractor's work, nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. J. ENGINEER D.either guarantees the perfonnance of any Contractor nor assumes responsibility for any e Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. K. ENGINEER shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or any other persons (except ENGINEER's own employees) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of ENGINEER. L. The General Conditions for any construction contract documents are to be provided by the OWNER. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, ENGINEER and OWNER shall designate specific individuals to act as ENGINEER's and OWNER's representatives with respect to the services to be performed or furnished by ENGINEER and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive infonnation, and render decisions relative to the Project on behalf of each respective party. 6.03 Design without Construction Phase Services A. Should OWNER provide Construction Phase services with either OWNER's representatives or a third party, ENGINEER's Basic Services under this Agreement will be considered to be completed upon completion of the Final Design Phase or Bidding or Negotiating Phase as outlined in Exhibit A. B. It is understood and agreed that if ENGINEER's Basic Services under this Agreement do not include Project observation, or review of the Contractor's performance, or any other Construction Phase services, and that such services will be provided by OWNER, then OWNER assumes all responsibility for interpretation of the .Contract Documents and for construction observation or review and waives any claims against the ENGINEER that may be in any way connected thereto. 6.04 Use of Documents A. All Documents are instruments of service in respect to this Project, and ENGINEER shall retain an ownership and property interest therein (including the right of reuse at the discretion of the ENGINEER) whether or not the Project is completed. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 4 of 12 e B. Copies of OWNER-furnished data that may be relied upon by ENGINEER are limited to the printed copies (also known as hard copies) that are delivered to the ENGINEER pursuant to Exhibit B. Files in electronic media fonnat of text, data, graphics, or of other types that are furnished by OWNER to ENGINEER are only for convenience of ENGINEER. Any conclusion or infonnation obtained or derived from such electronic fIles will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic media fonnat of text, data, graphics, or of other types that are ftunished by ENGINEER to OWNER are only for convenience of OWNER. Any conclusion or infonnation obtained or derived from such electronic files will be at the user's sole: risk. D. Because data stored in electronic medi~ fonnat can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic fIles agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60- day acceptance period will be corrected by the party delivering the electronic fIles. ENGINEER shall not be responsible to maintain documents stored in electronic media fonnat after acceptance by OWNER. E. When transferring documents in electronic media fonnat, ENGINEER makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by ENGINEER at the beginning of this Project. F. OWNER may make and retain copies of Documents for infonnation and reference in connection with use on the Project by OWNER. Such Documents are not intended or represented to be suitable for reuse by OWNER or others on extensions of the Project or on any other project. Any such reuse or modification without written verification or adaptation by ENGINEER, as appropriate for the specific purpose intended, will be at OWNER's sole risk and without liability or legal exposure to ENGINEER or to ENGINEER's Consultants. OWNER shall indemnify and hold harmless ENGINEER and ENGINEER's Consultants from all claims, damages, losses, and expenses, including attorneys' fees arising out of or resulting therefrom. G. If there is a discrepancy between the electronic fIles and the hard copies, the bard copies govern. - H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 6.05 Insurance A. ENGINEER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. OWNER shall procure and maintain insurance as set forth in Exhibit G, "Insurance." OWNER shall cause ENGINEER and ENGINEER's Consultants to be listed as additional insureds on any general liability or property insurance policies carried by OWNER which are applicable to the Project. C. OWNER shall require Contractor to purchase and maintain general liability and other insurance as specified in the Contract Documents and to cause ENGINEER and ENGINEER's Consultants to be listed as additional insureds with respect to such liability and other insurance purchased and maintained by Contractor for the Project D. OWNER and ENGINEER shall each deliver to the other certificates of insurance evidencing the coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement of ENGINEER's services and at renewals thereafter during the life of the Agreement. E. All policies of property insurance shall contain provisions to the effect that ENGINEER's and ENGINEER's Consultants' interests are covered and that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the insureds or additional insureds thereunder. F. At any time, OWNER may request that ENGINEER, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deducnbles that are more protective than those specified in Exlubit G. If so requested by OWNER, with the concurrence of ENGINEER, and if commercially available, ENGINEER shall obtain and shall require ENGINEER's Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for .such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. The obligation to provide further services under this Agreement may be terminated: Standard Form of Agreement Between Owner and Engineer for Professional Services Page 5 of 12 e 1. For cause, a. By either party upon 30 days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party. b. By ENGINEER: 1) upon seven days written notice if ENGINEER believes that ENGINEER is being requested by OWNER to furnish or perform services contrary to ENGINEER's responsibilities as a licensed professional; or 2) upon seven days written notice if the ENGINEER's services for the Project are delayed or suspended for more than 90 days for reasons beyond ENGINEER's control. 3) ENGINEER shall have no liability to OWNER on account of such termination. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same, then the cure period provided for herein shall extend up to, but in no case more than, 60 days after the date of receipt of the notice. 2. For convenience, a. By OWNER effective upon the receipt of notice by ENGINEER. B. The terminating party under paragraphs 6.06.A.I or 6.06.A.2 may set the effective date of termination at a time up to 30 days lau:r than otherwise provided to allow ENGINEER to demobilize personnel and equipment from the Site, to complete tasks whose value would otherwise be lost, to prepare notes as to the status of completed and uncompleted tasks, and to assemble Project materials in orderly files. e 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and ENGINEER each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by paragraph 6.08.B the assigns of OWNER and ENGINEER) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or ENGINEER to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ENGINEER and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.C shall appear in the Contract Documents. 6.09 Dispute Resolution A. OWNER and ENGINEER agree to negotiate all disputes between them in good faith prior to exercising their rights under Exhibit H or other provisions of this Agreement, or under law. In the absence of such an agreement, the parties may exercise their rights under law. B. If and to the extent that OWNER and ENGINEER have agreed on a method and procedure for resolving disputes between them arising out of or relating to this Standard Form of Agreement Between Owner and Engineer for Professional Services Page 6 of 12 e e Agreement, such dispute resolution method and procedure is set forth in Exhibit H, "Dispute Resolution." 1. To the fullest extent permitted by law, ENGINEER shall indemnify and hold harmless OWNER, OWNER's officers, directors, partners, and employees from and against any and aU costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of ENGINEER or ENGINEER's officers, directors, partners, employees, and ENGINEER's Consultants in the performance and furnishing of ENGINEER's services under this Agreement. 6.10 Hazardous Environmental Condition A. OWNER represents to Engineer that to the best of its knowledge a Hazardous Environmental Condition does not exist. B. OWNER has disclosed to the best of its knowledge to ENGINEER the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C. If a Hazardous Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to notify OWNER and, to the extent of applicable Laws and Regulations, appropriate governmental officials. 2. To the fullest extent permitted by law, OWNER shall indemnify and hold harmless ENGINEER, ENGINEER's officers, directors, partners, employees, and ENGINEER's Consultants from and against any and all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of OWNER or OWNER's officers, directors, partners, employees, and OWNER's consultants with respect to this Agreement or the Project. D. It is acknowledged by both parties that ENGINEER's scope of services does not include any services related to a Hazardous Environmental Condition. In the event ENGINEER or any other party encounters a Hazardous Environmental Condition, ENGINEER may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. 3. To the fullest extent permitted by law, ENGINEER's total liability to OWNER and anyone claiming by, through, or under OWNER for any cost, loss, or damages caused in part by the negligence of ENGINEER and in part by the negligence of OWNER or any other negligent entity or individual, shall not exceed the percentage share that ENGINEER's negligence bears to the total negligence of OWNER, ENGINEER, and all other negligent entities and individuals. E. OWNER acknowledges that ENGINEER is performing professional services . for OWNER and that ENGINEER is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as dermed in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the Site in connection with ENGINEER's activities under this Agreement. A. Indemnification 4. In addition to the indemnity provided under paragraph 6.11.A.2 of this Agreement, and to the fullest extent permitted by law, OWNER shall .indemnify and hold harmless ENGINEER. and its officers, directors, partners, employees, and ENGINEER's Consultants from and against all costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused by, arising out of or . resulting from a Hazardous Environmental Condition, provided that (i) any such cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than completed Work), including the loss of use resulting therefrom, and (ii) nothing in this paragraph 6.11.A.4. shall obligate OWNER to indemnify any individual or entity from and against the consequences F. If ENGINEER's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify ENGINEER's terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks Standard Form of Agreement Between Owner and Engineer for. Professional Services Page 7 of 12 e e of that individual's or entity's own negligence or willful misconduct. indicated, which are applicable to both the singular and plural thereof: 5. The indemnification provision of paragraph 6.11.A.l is subject to and limited by the provisions agreed to by OWNER and ENGINEER in Exhibit I, "Allocation of Risks," if any. 1. Addenda-- Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 6.12 Notices 2. Additional Services-- The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part 2 of this Agreement. A. Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. All notices shall be effective upon the date of receipt. 3. Agreement--This "Standard Form of Agreement between OWNER and ENGINEER for Professional Services," including those Exhibits listed in Article 8 hereof. 6.13 Survival 4. Application for Payment-The form acceptable to ENGINEER which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. A. All express representations, indemnifications, or limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and aU remaining provisions shall continue to be valid and binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 5. Asbestos--Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Basic Services-- The services to be performed for or furnished to OWNER by ENGINEER in accordance with Exhibit A, Part I, of this Agreement. 6.15 Waiver 7. Bid-- The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. A. Non-enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision, or of the remainder of this Agreement. 8. Bidding Documents-- The advertisement or invitation to Bid, instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 6.16 Headings 9. Change Order--A document recommended by ENGINEER, which is signed by. Contractor and OWNER to authorize an addition, deletion or revision in the W orlc, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms 10. Construction Agreement--The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings Standard Form of Agreement Between Owner and Engineer for Professional Services Page 8 of 12 e e 11. Construction Contract-- The entire and integrated written agreement between the OWNER and Contractor concerning the Work. no cost to OWNER, any Defective Work, normally one year after the date of Substantial Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 12. Construction Cost--The cost to OWNER of those portions of the entire Project designed or specified by ENGlNEER. Construction Cost does not include costs of services of ENGINEER or other design professionals and consultants, cost of land, rights-of-way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 18. Defective--An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of fmal payment. 13. Contract Documents--Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post-Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, the General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Construction Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 19. Documents--Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by ENGINEER to OWNER pursuant to this Agreement. 20. Drawings-- That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defmed. 21. Effective Date of the Construction Agreement-- The date indicated in the Construction Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. 22. Effective Date of the Agreement-- The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 14. Contract Price--The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 23. ENGINEER's Consultants-Individuals or entities having a contract with ENGINEER to furnish services with respect to this Project as ENGINEER's independent professional associates, consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER's Consultants. 15. Contract .Times-The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Substantial Completion, and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 24. Field Order--A written order issued by ENGINEER which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 16. Contractor--An individual or entity with whom OWNER enters into a Construction Agreement. 25. General Conditions-That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 17. Correction Period-- The time after Substantial Completion during which Contractor must correct, at Standard Form of Agreement Between Owner and Engineer for Professional Services Page 9 of 12 e e 26. Hazardous Environmental Condition-- The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 27. Hazardous Waste--The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 35. Samples--Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 28. Laws and Regulations; Laws or Regulations-- Any and all applicable laws, roles, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 36. Shop Drawings--All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to ENGINEER to illustrate some portion of the Work. 29. PCB's--Polychlorinated biphenyls. 37. Site-- Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 30. Petroleum--Petroleum, including crode oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non- Hazardous Waste and erode oils. 38. Specifications-- That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 31. Radioactive Materials--Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 39. Substantial Completion--The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 32. Record Drawings-- The Drawings as issued for construction on which the ENGINEER, upon completion of the Work, bas shown changes due to Addenda or Change Orders and other information which ENGINEER considers significant based on record documents furnished by Contractor to ENGINEER and which were annotated by Contractor to show changes made during construction. 40. Supplementary Conditions-- That part of the Contract Documents which amends or supplements the General Conditions. 33. Reimbursable Expenses-The expenses incurred directly by ENGINEER in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay ENGINEER as indicated in Exhibit C. 41. Total Project Costs-The. sum of the Construction Cost, allowances for contingencies, the total costs of services of ENGINEER or other design professionals and consultants, cost of land, rights-of- way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. 34. Resident Project Representative--The authorized representative of ENGINEER, if any, assigned to assist ENGINEER at the Site during the Construction Phase. The Resident Project Representative will be ENGINEER's agent or employee and under ENGINEER's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Standard Form of Agreement Between Owner and Engineer for Professional Services Page 10 of 12 e 42. Work-The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 43. Work Change Directive--A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the ENGINEER, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 44. Written Amendment-A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non-engineering or non-technical rather than strictly construction-related aspects of the Contract Documents. ARTICLE 8 PROVISIONS EXHIBITS AND SPECIAL 8.01 Exhibits Included A. Exhibit A, "ENGINEER's Services," consisting of 7 pages. B. Exhibit B, "OWNER's Responsibilities," consisting of 3 pages. C. Exhibit C, "PaYments to Engineer for Services and Reimbursable Expenses," consisting of 5 pages. D. Exlubit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative," consisting of 4 pages. E. Exhibit E, "Notice of Acceptability of Work," consisting of 2 pages. e F. Exhibit F--NOT INCLUDED G. Exhibit G, "Insurance," consisting of 1 page. H. Exhibit H, "Dispute Resolution," consisting of 1 page. 1. Exhibit I, "Allocation of Risks," consisting of 1 page. J. Exhibit J, "Special Provisions," consisting of 1 page. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with the Exlubits identified above) constitutes the entire agreement between OWNER and ENGINEER and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. Standard Form of Agreement Between Owner and Engineer for Professional Services Page 11 of 12 e e IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: ENGINEER: City of La Porte By: G~ T. \t~ Robert T. Herrera Title: City Manager Date Signed: Ii -'lc:>-q~ A TIEST: Turner Collie & Braden Inc. By: ~e.i-- Min Chu, P.E. Vice President Title: Date Signed: Address for giving notices: Turner Collie & Braden Inc. P. O. Box 130089 Flouston. Texas 77219-0089 Designated Representative (paragraph 6.02.A): Anthonv G. Sartori. P.E. Title: Proiect Manager Phone Number: 713-267-2829 Address for giving notices: Facsimile Number: 713-267-2857 City of La Porte E-Mail Address:tsartori@tcbhou.com P. O. Box 1115 La Porte. Texas 77572-1115 Designated Representative (paragraph 6.02.A): Douglas K. Kneupper. P.E. Title: City Engineer Phone Number: 281471-5020 Facsimile Number: 281-471-7168 E-Mail Address:kneuwerdCa>.ci.la-Dorte.tx.us Standard Form of Agreement Between Owner and Engineer for Professional Services Page 12 of 12 e e This is EXHlBIT A, consisting of 7 pages, referred to in and part of the Agreement between OWNER and ENGINEER Cor ProCessional Services dated ~ , f{ , 1.qG~ . ~ /.:') ." , Initial: OWNER~ ENGINEER IrMA--- ENGINEER's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below. PART 1 - BASIC SERVICES AI.Ol Study and Report Phase - NOT INCLUDED AI.02 Preliminary Design Phase - NOT INCLUDED A 1.03 Final Design Phase A. After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of probable Construction Cost as determined in the Preliminary Design Phase, but subject to any OWNER-directed modifications or changes in the scope, extent, character, or design requirements of or for the Project, and upon written authorization from OWNER, ENGINEER shall: I. On the basis of the above acceptance, direction, and authorization, prepare rmal Drawings indicating the scope, extent, and character of the Work to be performed and furnished by Contractor. Specifications will be prepared, where appropriate, in general conformance with the 16-division format of the Construction Specifications Institute. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and a,;sist OWNER in consultations with appropriate authorities. 3. Advise OV{NER of any adjustments to the opinion of probable Construction Cost and any adjustments to Total Project Costs known to ENGINEER, itemized as provided in paragraph Al.Ol.A.5. 4. Perform or provide the following additional Final Design Phase tasks or deliverables: 5. Prepare and furnish Bidding Documents for review and approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 6. Submit 20 rmal copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within 90 'Working days after authorization to proceed with this phase. B. In the event that the Work designed or specified by ENGINEER is to be performed or furnished under more than one prime contract, or if ENGINEER's services are to be separately sequenced with the work of one or more prime Contractors (such as in the case of fast-tracking), OWNER and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for performance of ENGINEER's services during the Final Design, Bidding or Negotiating, Construction, and Post-Construction Phases in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. This schedule is to be prepared and included in or become an amendment to Exlubit A whether or not the work under such contracts is to proceed concurrently. Page 1 of 7 Pages (Exhibit A - ENGINEER's Services) e e C. The number of prime contracts for Work designed or specified by ENGINEER upon which the ENGINEER's compensation has been established under this Agreement is one (1). D. ENGINEER's services under the Final Design Phase will be considered complete on the date when the submittals required by paragraph AI.03.A.6 have been delivered to OWNER. AI.04 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent oplDlon of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, ENGINEER shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where applicable, maintain a record of prospective bidders to whom Bidding Documents have been issued, attend pre-Bid conferences, if any, and receive and process Contractor deposits or charges for the Bidding Documents. 2. Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. 3. During the Bidding or Negotiating Phase ENGINEER shall assist OWNER in conducting the prebid conferences and prequalification of bidders as required by City of La Porte Ordinance No. 1476-A. Ordinance 1476-A requires all Contractors desiring to bid on construction projects having as estimated construction cost of greater than $300,000, must pre-qualify by filing a satisfactory Contractor's Statement. The Contractor's Statement requires the riling of both a Financial Statement and an Equipment and Experience Statement. The ENGINEER shall review the Equipment and Experience Statements submitted by the Contractor, check references and prepare a written report and recommendation based on their fmdings. The ENGINEER shall not be responsible for evaluating the financial statement submitted by Contractors. 4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: 5. Attend the Bid opening, prepare Bid tabulation sheets, and assist OWNER in evaluating Bids or proposals and in assembling and awarding contracts for the Work. B. The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase or upon cessation of negotiations with prospective Contractors (except as may be required if Exhibit F is a part of this Agreement). A 1.05 Construction Phase A. Upon successfUl completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, ENGINEER shall: 1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duti~s, responsibilities and authority of ENGINEER as assigned in said General Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through ENGINEER, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 2. Resident Project Representative (RPR). Provide the services of an RPR at the Site to assist the ENGINEER and to provide more extensive observation of Contractor's work. Duties, responsibilities, and authority of the RPR are as set forth in ExhIbit D. The furnishing of such RPR's services will not extend ENGINEER's responsibilities or authority beyond the specific limits set forth elsewhere in this Agreement. 3. Selecting Independent Testing Laboratory. Assist OWNER in the selection of an independent testing laboratory to perfonn the services identified in paragraph B2.01.0. Page 2 of 7 Pages (Exhibit A - ENGINEER's Services) e e 4. Pre-Construction Conf~rence. Participate in a Pre-Construction Conference prior to commencement of Work at the Site. 5. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for locating the Work which in ENGINEER's judgment are necessary to enable Contractor to proceed. 6. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. 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 Work. Such visits and observations by ENGINEER, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on ENGINEER's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, ENGINEER will determine in general if Contractor's work is proceeding in accordance with the Contract Documents, and ENGINEER shall keep OWNER informed of the progress of the Work. b. The purpose of ENGINEER's visits to, and representation by the Resident Project Representative, 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 the 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 will conform in general to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. 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 of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, ENGINEER neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 7. Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, 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 completed Project as a functioning whole as indicated in the Contract Documents. 8. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of the. Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and . interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 9. Change Orders and Work Change Directives. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 10. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the information given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. ENGINEER has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to ENGINEER. Page 3 of 7 Pages (Exhibit A - ENGINEER's Services) e e 11. Substitutes and "or-equal." Evaluate and determine the acceptability of substitute or "or-equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph Al.02.A.2 of this Exhibit A. 12. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. ENGINEER's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall be entitled to rely on the results of such tests. 13. Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, ENGINEER shall be fair and not show partiality to OWNER or Contractor and shall not be liable in connection with any decision rendered in good faith in such capacity. 14. Applications for Payment. Based on ENGINEER's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Detennine the amounts that ENGINEER recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute ENGINEER's representation to OWNER, based on such observations and review, that, to the best of ENGINEER's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of the 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), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe Contractor's work. In the case of unit price work, ENGINEER's recommendations of payment will include fmal determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of ENGINEER contained in paragraph A1.0S.A.6.a are expressly subject to the limitations set forth in paragraph A1.0S.A.6.b and other express or general limitations in this Agreement and elsewhere. b. By recommending any payment, ENGINEER shall not thereby be deemed to have represented that observations made by ENGINEER to check the quality or quantity of Contractor's work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in this Agreement and the Contract Documents. Neither ENGINEER's review of Contractor's work for the purposes of recommending payments nor ENGINEER's recommendation of any payment including fmal payment will impose on ENGINEER responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques; sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing. and performing the Work. It will also not impose responsibility on ENGINEER to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, 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. 15. Contractor's Completion Documents. a. Receive and review maintenailce and operating instructions, schedules, and guarantees. b. Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph A1.0S.A.I0, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. The extent of such ENGINEER's review will be limited as provided in paragraph Al.OS.A.IO. Page 4 of 7 Pages (Exhibit A - ENGINEER's Services) e e c. ENGINEER shall transmit these documents to OWNER. 16. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work ready for its inten.ded use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is Substantially Complete. If after considering any objections of OWNER, ENGINEER considers the Work Substantially Complete, ENGINEER shaIl deliver a certificate of Substantial Completion to OWNER and Contractor. 17. Additional Tasks. Perform or provide the following additional Construction Phase tasks or deliverables: 18. Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so .that ENGINEER may recommend, in writing, final payment to Contractor. Accompanying the recommendation for rmal payment, ENGINEER shall also provide a notice in the form attached hereto as Exlnbit E (the ''Notice of Acceptability of Work") that the Work is acceptable (subject to the provisions of paragraph A1.0S.A.14.b) to the best of ENGINEER's knowledge, information, and belief and based on the extent of the services provided by ENGINEER under this Agreement. 19. Record Drawings. Prepare and furnish to Owner Record Drawings showing appropriate record information based on Project annotated record documents received from Contractor. B. Duration of Lonstruction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon written recommendation by ENGINEER for rmal payment to Contractors. If the Project involves more than one prime contract as indicated in paragraph A1.03.C, Construction Phase services may be rendered at different times in respect to the separate contracts. C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of any Contractor, or of any of their subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. A 1.06 Post-Construction Phase -- NOT INCLUDED PART 2 - ADDITIONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance A. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement. 1. Preparation of applications and supporting documents (in addition to those furnished under Basic' Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environinental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by ENGINEER or its design requirements including, but not limited to, changes in size, complexity, OWNER's schedule, character of construction, or method of rmancing; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement or are due to any other causes beyond ENGINEER's control. Page 5 of 7 Pages (Exhibit A - ENGINEER's Services) e e 4. Services resulting from OWNER's request to evaluate additional Study and Report Phase alternative solutions beyond those identified in paragraph A1.01.AA. S. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B. 6. Providing renderings or models for OWNER's use. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by OWNER. 8. Furnishing services of ENGINEER's Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in paragraph A1.03.C. 10. Services during out-of-town travel required of ENGINEER other than for visits to the Site or OWNER's office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value engineering, and construcnbility review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Preparing additional Bidding Documents or Contract Documents for alternate bids or prices requested by OWNER for the Work or a portion thereof. 13. Determining the acceptability of substitute materials and equipment proposed during the Bidding or Negotiating Phase when substitution prior to the award of contracts is allowed by the Bidding Documents. 14. Assistance in connection with Bid protests, rebidding, or renegotiating contracts for construction, materials, equipment, or services, except when such assistance is required by Exhibit F. 15. Providing construction surveys and staking to enable Contractor to perform its work other than as required under paragraph Al.OS.A.S, and any type of property surveys or related engineering services needed for the transfer of interests in real property; and providing other special field surveys. 16. Providing Construction Phase services beyond the Contract Times set forth in Exhibit C. 17. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current' Laws and Regulations. 18. Preparation of operation and maintenance manuals. 19. Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other dispute resolution process related to the Project. 20 Providing more extensive services required to enable ENGINEER to issue notices or certifications requested by OWNER under paragraph 6.01.G of the Agreement. 21. Other services performed or furnished by ENGINEER not otherwise provided for in this Agreement. Page 6 of 7 Pages (Exhibit A - ENGINEER's Services) . e A2.02 Required Additional Services A. ENGINEER shall perform or furnish, without requesting or receiving specific advance authorization from OWNER, the Additional Services of the types listed below. ENGINEER shall advise OWNER in writing promptly after starting any such Additional Services. 1. Services in connection with Work Change Directives and Change Orders to reflect changes requested by OWNER so as to make the compensation commensurate with the extent of the Additional Services rendered. 2. Services in making revisions to Drawings and Specifications occasioned by the acceptance of substitute materials or equipment other than "or-equal" items; and services after the award of the Construction Agreement in evaluating and determining the acceptability of a substitution which is found to be inappropriate for the Project or an excessive number of substitutions. 3. Services resulting from significant delays, changes, or price increases occurring as a direct or indirect result of materials, equipment, or energy shortages. 4. Additional or extended services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by fIre or other cause during construction, (4) a significant amount of defective, neglected, or delayed work by Contractor, (5) acceleration of the progress schedule involving services beyond normal working hours, or (6) default by Contractor. 5. Services (other than Basic Services during the Post-Construction Phase) in connection with any partial utilization of any part of the Work by OWNER prior to Substantial Completion. 6. Evaluating an unreasonable claim or an excessive number of claims submitted by Contractor or others in connection with the Work. Page 7 of 7 Pages (Exhibit A - ENGINEER's Services) e e This is EXIllBIT B, consisting of 3 pages, referred to in and part of the Agreement between OWNER and ENGINEER for ~rofessional Services dated IIA t.l..vt J ~ , Iq'1~ . O. OWNER.G3-rJ1. Initial: ENGINEER ~ OWNER's Responsibmties Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide ENGINEER with aU criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms, conditions, and related documents for ENGINEER to include in the Bidding Documents, when applicable. B. Furnish to ENGINEER any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. Following ENGINEER's assessment of initially-available Project information and data and upon ENGINEER's request, furnish or otherwise make available such additional Project related information and data as is reasonably required to enable ENGINEER to complete its Basic and Additional Services. Such additional information or data would generally include the following: I. Property descriptions. 2. Zoning, deed, and other land use restrictions. 3. Property, boundary, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 4. Explorations and tests of subsurface conditions at or contiguous to the Site, drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site, or hydrographic surveys, with appropriate professional interpretation thereof. 5. Environmental assessments, audits, investigations and impact statements, and other relevant environmental or CuItural studies as to the Project, the Site, and adjacent areas. 6. Data or consultations as required for the Project but not otherwise identified in the Agreement or the Exlubits thereto. D. Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware of a Hazardous Environmental Condition or of any other development that affects the scope or time of performance of ENGINEER's services, or any defect or nonconformance in ENGINEER's services or in the work of any Contractor. E. Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as required F. Arrange for safe access to and make all provisions for ENGINEER to enter upon public and private property as required for ENGINEER to perform services under the Agreement. Page 1 of 3 Pages (Exhibit B - OWNER's Responsibilities) e e G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by ENGlNEER (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. NOT APPLICABLE 1. Provide, as required for the Project: 1. Accounting, bond and fmancial advisory, independent cost estimating, and insurance counseling services. 2. Legal services with regard to issues pertaining to the Project as OWNER requires, Contractor raises, or ENGINEER reasonably requests. 3. Such auditing services as OWNER requires to ascertain how or for what purpose Contractor has used the moneys paid. 4. Placement and payment for advertisement for Bids in appropriate publications. J. Advise ENGINEER of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructibility review. K. Furnish to ENGINEER data as to OWNER's anticipated costs for services to be provided by others for OWNER so that ENGINEER may make the necessary calculations to develop and periodically adjust ENGINEER's opinion of Total Project Costs. L. If OWNER designates a construction manager or an individual or entity other than, or in addition to, ENGINEER to represent OWNER at the Site, derme and set forth as an attachment to this Exhibit B the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of ENGINEER. M. If more than one prime contract is to be awarded for the Work designed or specified by ENGINEER, designate a person or entity to have authority and responsibility for coordinating the activities among the various prime Contractors, and define and set forth the duties, responsibilities, and limitations of authority of such individual or entity and the relation thereof to the duties, responsibilities, and authority of ENGINEER as an attachment to this Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such services begin. N. Attend the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings, and Substantial Completion and rmal payment inspections. O. Provide the services of an independent testing laboratory to perform all inspections, tests, and approvals of Samples, materials, and equipment required by the Contract Documents, or to evaluate the performance of materials, . equipment, and facilities of OWNER, prior to their incorporation into the Work with appropriate professional interpretation thereof. P. Provide inspection or monitoring services by an individual or entity other than ENGINEER (and disclose the identity of such individual or entity to ENGINEER) as OWNER determines necessary to verify: 1. That Contractor is complying with any Laws and Regulations applicable to Contractor's performing and furnishing the Work. 2. That Contractor is taking all necessary precautions for safety of persons or property and complying with any special provisions of the Contract Documents applicable to safety. Q. Provide ENGINEER with the findings and reports generated by the entities providing services pursuant to paragraphs B2.01.0 and P. Page 2 of 3 Pages (Exhibit B - OWNER's Responsibilities) It e R. Perform or provide the following additional services: NOT APPLICABLE Page 3 of 3 Pages (Exhibit B - OWNER's Responsibilities) e e This is EXHIBIT C, consisting of 5 pages, referred to in and part of the Agreement between OWNER ,god E{~~ER for Professional Services dated~, ~ f":),...., r Initial: OWNER~ ENGINEER ~ Payments to ENGINEER for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 -- PAYMENTS TO THE ENGINEER C4.01 For Basic Services Having A Determined Scope --Lump Sum Method of Payment A. OWNER shall pay ENGINEER for Basic Services set forth in Exhibit At except for services of ENGINEER's Resident Project Representative and Post-Construction Phase services, if any, as follows: 1. A Lump Sum amount of $146,000 based on the following assumed distribution of compensation: a. Study and Report Phase b. Preliminary Design Phase c. Final Design Phase d. Bidding and Negotiating Phase e. Construction Phase n/a n/a $122,100 $6,000 $17,900 2. ENGINEER may alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total Lump Sum amowlt unless approved in writing by the OWNER. 3. The Lump Sum includes compensation for ENGINEER's services and services of ENGINEER's Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account fo:r labor, overhead, profit, and Reimbursable Expenses. 4. The portion of the Lump Sum amount billed for ENGINEER's services will be based upon ENGINEER I S estimate of the proportion of the total services actually completed during the billing period to the Lump Sum. 5. The Lump Sum is conditioned on Contract Times to complete the Work not exceeding 7 months. Should the Contract Times to complete the Work be extended beyond this period, the total compensation to ENGINEER shall be appropriately adjusted. 6. If more prime contracts are awarded for Work designed or specified by ENGINEER for this Project than identified in Exhibit A, the ENGINEER shall be compensated an additional amount to be determined by ENGINEER and OWNER for all Basic Services for each prime contract added. Page 1 of 5 pages (Exhibit C - Basic Services With Determined Scope -- Lump Sum Method) e C4.02 For Basic Services Having An Undetermined Scope - Standard Hourly Rates Method of Payment A. OWNER shall pay ENGINEER for Basic Services having an undetermined scope as follows: 1. Resident Project Representative Services. For services of ENGINEER's Resident Project Representative, if any, under paragraph A1.05A.2.a of Exhibit A, an amount equal to the cumulative hours charged to the Project by each class of ENGINEER's employees times Standard Hourly Rates for each applicable billing class for aU Resident Project Representative services performed on the Project, plus Reimbursable Expenses and ENGINEER's Consultant's charges, if any. The total compensation under this paragraph is estimated to be $68,850. The basis of compensation for Resident Project Representative Services is summarized in Exhibit J. 2. Post Construction Phase Services- NOT INCLUDE!) C4.03 For Additional Services A. OWNER shall pay ENGINEER for Additional Services as follows: 1. General. For services of ENGINEER's employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A, except for services as a consultant or witness under paragraph A2.01.A.20, an amount equal to the cumulative hours charged to the Project by each class of ENGINEER's employees times Standard Hourly Rates for each applicable billing class for all Additional Services performed on the' Project, plus Reimbursable E:xpenses and ENGINEER's Consultant's charges, if any. 2. Serving .. as a Witness. For services performed by ENGINEER's employees as witnesses giving testimony in any litigation, arbitration, or other legal or administrative proceeding under paragraph A2.01.A.20, at the rate of $1,000 peT day or any portion thereof (but compensation for time spent in preparing to testify in any such litigation, arbitration, or proceeding will be on the basis provided in e paragraph C4.03.A.1). Compensation for ENGINEER's Consultants for such services will be on the basis provided in paragraph C4.06. C4.04 For Reimbursable Expenses A. When not included in compensation for Basic Services under paragraph C4.01, OWNER shall pay ENGINEER for Reimbursable Expenses at the rates set forth in Appendix 1 to this Exhibit C. B. Reimbursable Expenses include the following categories: transportation and subsistence incidental thereto; obtaining bids or proposals from Contractor(s); providing and maintaining field office facilities including furnishings and utilities; subsistence and transportation of Resident Project Representative and their assistants; toll telephone calls and telegrams; reproduction of reports, Drawings, Specifications, Bidding Documents, and similar Project-related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER, overtime work requiring higher than regular rates. In addition, if authorized in advance by OWNER, Reimbursable Expenses will also include expenses incurred for computer time and the use of other highly specialized equipment. C. The amounts payable to ENGINEER for Reimbursable Expenses will be the Project-related internal expenses actually incurred or allocated by ENGINEER, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of 1.1. D. The Reimbursable Expenses Schedule will be adjusted annually (beginning 1 year from the effective date of this Agreement) to reflect equitable changes in the compensation payable to' ENGINEER. C4.05 Standard Hourly Rates A. Standard Hourly Rates are set forth in Appendix 2 to this Exhibit C and include salaries and wages paid to personnel in each billing class plus the cost of customary and statutory benefits, general and administrative overhead, non-project operating costs, and operating margin or profit. B. The Standard Hourly Rates will be adjusted annually (beginning 1 year from the effective date Page 2 of 5 pages (Exhibit C - All Other Services/Charges -- Standard Hourly Rates Method of Payment) e e of this Agreement) tel reflect equitable changes in the compensation payable to ENGINEER. shall either agree to such compensation exceeding said estimated amount or OWNER and ENGINEER shall agree to a reduction in the remaining services to be rendered by ENGINEER, so that total compensation for such services will not exceed said estimated amount when such services are completed. If ENGINEER exceeds the estimated amount before OWNER and ENGINEER have agreed to an increase in the compensation due ENGINEER or a reduction in the remaining services, the ENGINEER shall be paid for all services rendered hereunder. C4.06 For ENGINEER's Consultant's Charges A. Whenever compensation to ENGINEER herein is stated to include charges of ENGINEER's Consultants, those charges shall be the amounts billed by ENGINEER's Consultants to ENGINEER times a Factor of 1.1. C4.07 Factors A. The external Reimbursable Expenses and ENGINEER's Consultant's Factors . include ENGINEER's overhead and profit associated with ENGINEER's responsibility for the administration of such services and costs. C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for ENGINEER's services which are related to the services identified in paragraphs C4.02 and C4.03, will be during the billing period based on the cumulative hours charged to the Project by each class of ENGINEER's employees times the Standard Hourly Rate for each class plus Reimbursable Expenses and. ENGINEER's Consultant's charges, if any. B. Extended Contract Times. Should the Contract Times to complete the Work be extended beyond the period identified in paragraph C4.01, payment for ENGINEER's services shaIl be continued based on the Standard Hourly Rates Method of Payment. C. Estimated Compensation Amounts 1. ENGINEER's estimate of the amounts that will become payable for Basic Services are only estimates for planning purposes, are not binding on the parties, and are not the minimum or maximum amounts payable to ENGINEER under the Agreement. 2. When estimated compensation amounts have been stated herein and it subsequently becomes apparent to ENGINEER that a compensation amount thus estimated will be exceeded, ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER and ENGINEER shall review the matter of services remaining to be performed and compensation for such services. OWNER Page 3 of 5 pages (Exhibit C - All Other Services/Charges -- Standard Hourly Rates Method of Payment) e Reimbursable Expenses Schedule e This is Appendix 1 to EXHIBIT C, consisting of 5 pages, referred to in and part of the Agreement between OWNER an ENGINEER for Pro~ional Services dated ~f> . Initial : OWNER (911L ~.._. ENGINE~ Current agreements for engineering services stipulate that the Reimbursable Expenses are subject to review and adjustment per Exhibit C. Reimbursable expenses for services performed on the date of the Agreement are: FAX 8"xll" Copies/Impression Blue Print Copies Reproducible Copies (Mylar) Reproducible Copies (paper) Mileage (auto) Field Truck Daily Charge Mileage (Field Truck) Field Survey Equipment Confined Space Equipment Resident Project Representative Equipment Computer CPU Charge Personal Computer Charge CAD Charge CAE Terminal Charge VCR and Monitor Charge Video Camcorder Electrical Meters Charge Flow Meter Charge Rain Gauge Sampler Charge Dissolved Oxygen Tester Charge Fluorometer Laboratory Pilot Testing Charge Soil Gas Kit Submersible Pump Water Level Meter Soil Sampling Groundwater Sampling Health and Safety Level D Health and Safety Level C Electronic Media Charge Long Distance Phone Calls Meals and Lodging n1a $0.04/page $0.06/sq. ft. $0.9S/sq. ft. $0.90/sq. ft. $0.32S/mile nla nla at cost at cost nJa nla nla $IS.OOlhour at cost nla n1a at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost at cost Page 4 of 5 pages (Exhibit C - All Other Services/Charges -- Standard Hourly Rates Method of Payment) It e This is Appendix 2 to EXHIBIT C, consisting of 5 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated v1\t\(}.{a I ~ ' ~cti Standard Hourly Rates Schedule Initial: OWNER~ ENGINEER ~ Current agreements for engineering services stipulate that the standard hourly rates are subject to review and adjustment per Exhibit C. Hourly rates for services performed on the date of the Agreement are: Principal $1501hour Project Manager Electrical Engineer Structural Engineer $ll0/hour Mechanical Engineer Civil EngineerlDesigner Project Representative $85/hour CADD Technician $65/hour Administrative $50/hour Page 5 of 5 pages (Appendix 2 to Exhibit C- Standard Hourly Rates Schedule) e e OWNER GfM.1 Initial: ENGINEER \foAA-- Duties, Responsibilities, and Limitations of Authority of Resident Project Representative This is EXHIBIT D, consisting of 4 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated ~ 11 , f1'if . Paragraph 1.0IC of the Agreement is amended and supplemented to include the following agreement of the parties: D6.02 Resident Project Representative A. ENGINEER shall furnish a Resident Project Representative ("RPR "), assistants, and other field staff to assist ENGINEER in observing progress and quality of the Work. The RPR, assistants, and other field staff under this Exhibit D may provide full time representation or may provide representation to a lesser degree. B. Through such additional observations of Contractor's work in progress and field checks of materials and equipment by the RPR and assistants, ENGINEER shall endeavor to provide further protection for OWNER against defects and dei1ciencies in the Work. However, ENGINEER shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over the Contractor's Work nor shall ENGINEER have authority over or responsibility for the means, methods, techniques, sequences, or procedures selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's performing and furnishing the Work, or responsibility of construction for Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. In addition, the specific limitations set forth in section A.1.0S of Exhibit A of the Agreement are applicable. C. The duties and responsibilities of the RPR are limited to those of ENGINEER in the Agreement with the OWNER and in the Contract Documents, and are further limited and described as follows: 1. General: RPR is ENGINEER's agent at the Site, will act as directed by and under the supervision of ENGINEER, and will confer with ENGINEER regarding RPR's actions. RPR's dealings in matters pertaining to the Contractor's work in progress shall in general be with ENGINEER and Contractor, keeping OWNER advised as necessary. RPR's dealings with subcontractors shall only be through or with the full knowledge and approval of Contractor. RPR shall generally communicate with OWNER with the knowledge of and under the direction of ENGINEER. 2. Schedules: Review the progress schedule, schedule of Shop Drawing and Sample submittals, and schedule of values prepared by Contractor and consult with ENGINEER concerning acceptability. 3. Conferences and Meetings: Attend meetings with Contractor, such as preconstruction conferences, progress'meetings, job conferences and other project-related meetings, and prepare and circulate copies of minutes thereof. 4. Liaison: a. Serve as ENGINEER's liaison with Contractor, working principally through Contractor's superintendent and assist in understanding the intent of the Contract Documents. b. Assist ENGINEER in serving as OWNER's liaison with Contractor when Contractor's operations affect OWNER's on-Site operations. Page 1 of 4 Pages (Exhibit D - Resident Project Representative) e e c. Assist in obtaining from OWNER additional details or information, when required for proper execution of the Work. 5. Interpretation of Contract Documents: Report to ENGINEER when clarifications and interpretations of the Contract Documents are needed and transmit to Contractor clarifications and interpretations as issued by ENGINEER. 6. Shop Drawings and Samples: a. Record date of receipt of Samples and approved Shop Drawings. b. Receive Samples which are furnished at the Site by Contractor, and notify ENGINEER of availability of Samples for examination. c. Advise ENGINEER and Contractor of the commencement of any portion of the Work requiring a Shop Drawing or Sample submittal for which RPR believes that the submittal has not been approved by ENGINEER. 7. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings or Specifications and report with RPR's recommendations to ENGINEER. Transmit to Contractor in writing decisions as issued by ENGINEER. 8. Review of Work and Rejection of Defective Work: a. Conduct on-Site observations of Contractor's work in progress to assist ENGINEER in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to ENGINEER whenever RPR believes that any part of Contractor's work in progress will not produce a completed Project that conforms generally to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents, or has been damaged, or does not meet the requirements of any inspection, test or approval required to be made; and advise ENGINEER of that part of work in progress that RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. 9. Inspections, Tests, and System Startups: a. Consult with ENGINEER in advance of scheduled major inspections, tests, and systems startups of important phases of the Work. b. Verify that tests, equipment, and systems start-ups and operating and maintenance training are conducted in the presence of appropriate OWNER's personnel, and that Contractor maintains adequate records thereof. c. Observe, record, and report to ENGINEER appropriate details relative to the test procedures. and systems startups. d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections, and report to ENGINEER. 10. Records: a. Maintain orderly f1les for correspondence, reports of job conferences, reproductions of original Contract Documents including all Change Orders, Field Orders, Work Change Directives, Addenda, additional Drawings issued subsequent to the execution of the Contract, ENGlNEER's clarifications and interpretations of the Contract Documents, progress reports, ShOp Drawing and Sample submittals received from and delivered to Contractor, and other Project related documents. Page 2 of 4 Pages (Exhibit D - Resident Project Representative) e e b. Prepare a daily report or keep a diary or log book, recording Contractor's hours on the Site, weather conditions, data relative to questions of Change Orders, Field Orders, Work Change Directives, or changed conditions, Site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to ENGINEER. c. Record names, addresses and telephone numbers of all Contractors, subcontractors, and major suppliers of materials and equipment. d. Maintain records for use in preparing Project documentation. e. Upon completion of the Work, furnish original set of all RPR Project documentation to ENGINEER. 11. Reports: a. Furnish to ENGINEER periodic reports as required of progress of the Work and of Contractor's compliance with the progress schedule and schedule of Shop Drawing and Sample submittals. b. Draft, and recommend to ENGINEER proposed Change Orders, Work Change Directives, and Field Orders. Obtain backup material from Contractor. c. Furnish to ENGINEER and OWNER copi,es of all inspection, test, and system startup reports. d. Report immediately to ENGINEER the occurrence of any Site accidents, any Hazardous Environmental Conditions, emergencies, or acts of God endangering the Work, and property damaged by flIe or other causes. 12. Payment Requests: Review Applications for Payment with Contractor for compliance with the established procedure for their submission and forward with recommendations to ENGINEER, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the Site but not incorporated in the Work. 13. Certificates, Operation and Maintenance Manuals: During the course of the Work, verify that materials and equipment certificates, operation and maintenance manuals and other data required by the Specitications to be assembled and furnished by Contractor are applicable to the items actually installed lmd in accordance with the Contract Documents, and have these documents delivered to ENGINEER for review and forwarding to OWNER prior to payment for that part of the Work. 14. Completion: a. Before ENGINEER issues a Certificate of Substantial Completion, submit to Contractor a list of observed items requiring completion or correction. b. Obselve whether Contractor has arranged for inspections required by Laws and Regulations, including but not limited to those to be performed by public agencies having jurisdiction over the Work. c. Participate in a final inspection in the company of ENGINEER, OWNER, and Contractor and prepare a fmallist of items to be completed or corrected. d. Observe whether all items on final list have been completed or corrected and make recommendations to ENGINEER concerning acceptance and issuance of the Notice of Acceptability of the Work. D. Resident Project Representative shall not: Page 3 of 4 Pages (Exhibit D - Resident Project Representative) e e 1. Authorize any deviation from the Contract Documents or substitution of materials or equipment (including "or-equal" items). 2. Exceed limitations of ENGINEER's authority as set forth in the Agreement or the Contract Documents. 3. Undertake any of the responsibilities of Contractor, subcontractors, suppliers, or Contractor's superintendent. 4. Advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of Contractor's work unless such advice or directions are specifically required by the Contract Documents. 5. Advise on, issue directions regarding, or assume control over safety precautions and programs in connection with the activities or operations of OWNER or Contractor. 6. Participate in specialized field or laboratory tests or inspections conducted off-site by others except as specifically authorized by ENGINEER. 7. Accept Shop Drawing or Sample submittals from anyone other than Contractor. 8. Authorize OWNER to occupy the Project in whole or in part. Page 4 of 4 Pages (Exhibit D - Resident Project Representative) . e This is EXHIBIT E, consisting of 2 pages, referred to in and part of the Agreement between OWNER and ENGINEER for Professional Services dated ~ (~ , "qg Gl-rt.! Initial: OWNER ENGINEER ~ NOTICE OF ACCEPI'ABILITY OF WORK PROJECT: OWNER: OWNER's Construction Contract Identification: EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT: CONSTRUCTION CONTRACT DATE: ENGINEER: To: OWNER And To: CONTRACTOR The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work furnished and perform.ed by CONTRACTOR under the above Contract is acceptable, expressly subject to the provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof. By: Title: Dated: Page 1 of 2 Pages (Exhibit E - Notice of Acceptability of Work) e e (Reverse side of Notice) . CONDmONS OF NOTICE OF ACCEPTABILITY OF WORK The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the following terms and conditions to which all persons who receive said Notice and rely thereon agree: 1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing under similar conditions at the same time and in the same locality. 2. Said Notice reflects and is an expression of the professional judgment of ENGINEER. 3. Said Notice is given as to the best of ENGINEER's knowledge, information, and belief as of the date hereof. 4. Said Notice is based entirely on and expressly limited by the scope of services ENGINEER has been employed by OWNER to perform or furnish during construction of the Project (including observation of the CONTRACTOR's work) under ENGINEER's Agreement with OWNER and under the Construction Contract referenced on the reverse hereof, and applies only to facts that are within ENGINEER's knowledge or could reasonably have been ascertained by ENGINEER as a result of carrying out the responsibilities specificaIly assign.ed to ENGINEER under ENGINEER's Agreement with OWNER and the Construction Contract referenced on the reverse hereof. 5. Said Notice is not a guarantee or warranty of CONTRACTOR's performance under the Construction Contract referenced on the reverse hereof nor an assumption of responsibility for any failure of CONTRACTOR to furnish and perform the Work thereunder in accordance with the Contract Documents. Page 2 of 2 Pages (Exhibit E - Notice of Acceptability of Work) e e This is EXHIBIT F, consisting of 1 page, referred to in and part of the Agreement between OWNER and ENGINEER i~G~or~onal Services dated~ Ig , OWNER~ ENGINEER ~ Construction Cost Limit Paragraph 5.02 of the Agreement is amended and supplemented to include the following agreement of the parties: F5.02 Designing to Construction Cost Limit-NOT INCLUDED Page 1 of 1 Page (Exhibit F - Construction Cost Limit) Insurance e e This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and E GINEER Cor ProCessional Services dated ,~. Initial: OWNER ~~ ENGINEER ~ Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance A. The limits of liability for the insurance required by paragraph 6.05.A and 6.05.B of the Agreement are as follows: 1. By ENGINEER: a. Workers' Compensation: b. Employer's Liability -- I) Each Accident: 2) Disease, Policy Limit: 3) Disease, Each Employee: c. General Liability -- I) Each Occurrence (Bodily Injury and Property Damage): 2) General Aggregate: d. Excess or Umbrella Liability -- I) Each Occurrence: 2) General Aggregate: e. Automobile Liability -- I) Combined Single Limit (Bodily Injury and Property Damage): Each Accident f. Other (specify): Architects & Engineers Professional Liability "Claims Made" Page 1 of 1 Page (Exhibit G - Insurance) Statutory $1.000.000 $1.000.000 $1.000.000 $1.000.000 $1.000.000 $1.000.000 $1.000.000 $1.000.000 $1.000.000 e e This is EXHIBIT H, consisting of I page, referred to in and part of the Agreement between OWNER IJPd ENGINEER for Professional Services dated ~ I"() , lq'i~ . e.tl Initial: OWNER ~\lS ENGINEER ~ Dispute Resolution Paragraph 6.09 of the Agreement is amended and supplemented to include the following agreement of the parties: H6.09 Dispute Resolution A. The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this agreement promptly by negotiation between senior executives of the parties who have authority to settle the controversy. The disputing party shall give the other party written notice of the dispute. Within ten days after receipt of said notice, the receiving party shall submit to the other a written response. The notice and response shall include (a) a statement of each party's position and a summary of the evidence and arguments supporting its position, and (b) the name and title of the executive who will represent that party. The executives shall meet at a mutually acceptable time and place within twenty days of the date of the disputing party's notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. If the controversy or claim has not been resolved within thirty days of the meeting of the senior executives, the parties shall endeavor to settle the dispute by mediation under the Construction Industry Mediation Rules of the American Arbitration Association. If the matter has not been resolved pursuant to the aforesaid mediation procedure within ninety days of the commencement of such procedure, (which period may be extended by mutual agreement), or if either party will not participate in such procedure, the controversy shall be settled by arbitration in accordance with "American Arbitration Association Construction Industry Arbitration Rules" by a sole arbitrator. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. & 1-16, and judgment upon the award rendered by the Arbitrator may be entered by any court having jurisdiction thereof. The place of arbitration shall be Harris County. The arbitrator is not empowered to award damages in excess of actual damages, including punitive. damages. Page 1 of 1 Page (Exhibit H - Dispute Resolution) e e This is EXHIBIT I, consisting of 1 page, referred to in and part of the Agreement between OWNER ifd ENGINEER for Professional Services dated ~ ' mL. Initial: OWNER ~ ENGINEER ~ Allocation of Risks Paragraph 6.11 of the Agreement is amended and supplemented to include the following agreement of the parties: I6.11.B Limitation of ENGINEER's Liability 1. ENGINEER's Liability Limited to Amount of ENGINEER's Compensation. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of ENGINEER and ENGINEER's officers, directors, partners, employees, agents, and ENGINEER's Con.suItants, and any of them, to OWNER and anyone claiming by, through, or under OWNER for any aildl all claims, losses, costs, or damages whatsoever arising out of, resulting from or in any way related to the Project or the Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied of ENGINEER or ENGINEER's officers, directors, partners, employees, agents, or ENGINEER's Consultants, or any of them, shall not exceed the total compensation received by ENGINEER under this Agreement. 2. Exclusion of Special, Incidental, Indirect and Consequential Damages. To the fullest extent permitted by law, and not withstanding any other provision in the Agreement, ENGINEER and ENGINEER's officers, directors, partners, employees, agents, and ENGINEER's Consultants shall not be liable to OWNER or anyone claiming by, through, or under OWNER for any special, incidental, indirect, or consequential damages whatsoever arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, including but not limited to any such damages caused by the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied of ENGINEER or ENGINEER's officers, directors, partners, employees, agents, or ENGINEER's Consultants, or any of them. Page 1 of 1 Page (Exhibit 1- Allocation of Risks) e e This is EXHIBIT J, consisting of 1 page, referred to in and part of the Agreement between OWNER d ENGINEER for p'ofessional Services dated 10'i~ . Special Provisions Initial : OWNER ~ ENGINEER ~ Paragraph C4.02 of the Agreement is amended to include the following agreement(s) of the parties: The fee associated with Resident Project Representative Services is based on a construction duration of 7 months (34 weeks). The total fee is $68,850. Proiect Representative: 20 hrs/wk x $85/hr x 34 wks = $57,800 Mileage: 200 miles/trip x 5 trips/wk x 34 wks x $0.325/mile = $11,050 Total: ($57,800 + $11,050) = $68,850 Page 1 of 1 Page (Exhibit J- Speci~ Provisions) e e REO.ST FOR CITY COUNCIL AGENDttEM Agenda Date Requested: May 18, 1998 Requested By: Alex Osmond Department: Administration xx Report Resolution Ordinance Exhibits: Sealed Bid #0070 Bid Tabulation Bidders List SUMMARY & RECOMMENDATION Advertised requests for proposals for concessions at Bay Forest Golf Course were mailed to sixteen (16) vendors with three (3) returning proposals: Kevin O'Brien, Rick Williams and Frank Glass. Mr. O'Brien - Gulf Coast Concessions, and Rick Williams - Casual Catering submitted the highest percentage (25%) of gross sales to be paid to the City and Frank Glass, 22%. The current contract with Kevin O'Brien pays 20%. Since Mr. O'Brien submitted 25% of gross sales as the City's percentage, and we have been pleased with his service over the last 5 years, staff recommends that we continue with Mr. O'Brien. Action Required by Council: Approve awarding contract for concessions at Bay Forest Golf Course to Kevin O'Brien for 25% of gross sales. This will be a three (3) year contract with an option to renew for an additional two (2) years. Availability of Funds: General Fund Capital Improvement ~_ Other Water/Wastewater General Revenue Sharing Account Number N\\ Funds Available: N ~ Yes No Approved for City Council Agenda Dare rfttJ e e CITY OF LA PORTE INTEROFFICE MEMORANDUM MAY 7,1998 . FROM: ALEX OSMOND, GOLF PRO SUSAN KELLEY, PURCHASING AGENT ) ~L, RFP #0070 - FOOD & BEVERAGE CONCESSIONS FOR BAY FOREST GOLF COURSE TO: SUBJ: Advertised, request for proposals - food and beverage concessions for Bay Forest Golf Course were opened and read on April 20, 1998. Bid requests were mailed to sixteen (16) vendors with three (3) returning bids. Copies of the bids have been sent to you for your review. Please submit your recommendation with an agenda request form by the. prescribed time before the next regular council meeting. If there is a need to delay bringing this bid before council, please notify me. . Attachment: Bid Tabulation Bidder's List e It BID TABULA TION - GOLF COURSE CONCESSIONS GULF II GALVESTON CASUAL DESCRIPTION CONCESSIONS CATERING FRANK GLASS FOOD ITEMS Hamburgers 1/31b $2.95 1/21b $3.50 40z $2.95 Cheeseburgers 1/31b $3.10 1/21b $3.75 40z $3.25 Hot Dogs 1/41b $2.50 20z $1.50 2-3/4 oz $2.50 Cold Sandwiches $2.95 $2.50 French Fries $1.85 $1.25 $1.25 Chips . . $0.75 $0.75 $0.50 Candy $0.75 $0.75 $0.75 Breakfast $3.95 $0.75 $3.95 TOURNAMENT MENU Barbecue $7.95 $8.00 $6.95 Cold Sandwich Buffet $6.95 $6.00 $6.00 Sack Lunch $5.95 $4.00 $6.00 Hamburger Buffet $5.95 $6.00 $6.00 Breakfast $4.95 $2.50 $4.95 BEVERAGES Coffee $0.75 $0.75 $0.65 Tea $1.00 $0.75 $1.00 Soft Drinks (16 oz) $2.00 $1.00 $1.00 Beer $1.65 $1.75 $1.65 Wine $2.50 $2.50 $3.00 Mixed Drinks (Bar) $2.50 $3.25 $2.50 Mixed Drinks (Call) $3.50 $4.00 $3.25 Mixed Drinks (Premium) $4.00 Fruit Juice $1.00 $1.00 $1.00 Sport Drink $2.50 $1.50 $1.00 - 12 oz Coffee $0.75 12 oz Soft Drink $1.00 . Percentage to be paid to Golf Course 25% 25% 22% e BIDDER'S LIST GOLF COURSE CONCESSIONS RFP #0070 e ANGELO'S FLYING PIZZA. 9606-D SPENCER HW'i'. LA PORTE TX 77571 Rlf' f Ii J I /I,lfrn 5 CA'StJAL CATERING 616 N SHADY LANE LA PORTE TX 77571 ARA clo LA PORTE ISD 301 E FAIRMONT Pt<WY LA PORTE TX 77571 EL TORO MEXICAN RESTAURANT 616 MAIN STREET LA PORTE TX 77571 EPIC SPECIAL EVENTS PO BOX 1006 HOUSTON TX 77521 FAIRLANES - SPENCER SQUARE 3650 SPENCER HWY PASADENA TX 77504 FAIRLANE 1 0944 BEAVER DAM RD HUNT VALLEY MD 21030-2522 INN ON THE TOUR 3102 FM 1960 EAST HUMBLE TX 77338 LAS HADAS RESTAURANT 204 W FAIRMONT PKWY LA PORTE TX 77571 LENOX BARBECUE & CATERING PO BOX 9384 HOUSTON TX 77011 SONNY'S HAPPY CAJUN PO BOX 2094 LA PORTE TX 77572 MARIO'S PIZZA 1128 S BROADWAY LA PORTE TX 77571 TORTILLA'S MEXICAN RESTAURANT 9602 SPENCER HWY LA PORTE TX 77571 TVVO CAJUNS CAFE 10003 SPENCER HWY LA PORTE TX 77571 ERNIE'S ON THE GREEN 1600 GEORGIA STREET DEER PARK TX 77536 FRANK L GLASS PO BOX 1503 LA PORTE TX 77572-1503 BAYSHORE PUBLISH DATES: APRIL 5, 1998 APRIL 12, 1998 CHAMBER OF COMMERCE PO BOX 996 LA PORTE TX 77572-0996 ~~ It e REOUEI FOR CITY COUNCIL AGENDA 1& Agenda Uate Requested: May 18. 1998 Requested By: S. Gillett ~ Department: Public Works XXX Report _ Resolution _ Ordinance Exhibits: H-GAC Contrnct Prices for Plastic Bags SUMMARY & RECOMMENDATION It is time to order plasti<<: bags for the August distribution. The current contract is with Arrow Industries, at a cost of $0.38 per pound. Due to the numerous problems with the current vendor, the Purchasing Division contacted other vendors (or pricing information. Bemis Company currently holds the H-GAC contract for Plastic Garbage bags, at a price of $0.402 per pound. Based on 105,281 Ibs. of bags (the quantity needed for the upcoming distribution), and including the H-GAC administrative fee, the total cost is $43,137.80. Dyna Pak Corporation quoted a price of $0.439 per pound. Although Arrow Industries has historically been the low bid, the last three orders received from them were inconsistent with the actual quantity ordered. Additionally, each order was lost or delayed, and deliveries were late. Tremendous time was devoted by the Purchasing Agent and the Solid Waste Superintendent expediting these orders. Phone calls were made daily for the two weeks prior to the scheduled handout to ensure the bags would arrive in time. In light of these problems, it is recommended that the purchase of plastic garbage bags be made through an interlocal agreement with H-GAC that will allow the city to forego the formal bidding process. State law allows this exemption because H-GAC formally bids the product each year. Action Required by Council: Approve an interlocal agreement with H-GAC to purchase 105,281 Ibs. of plastic garbage bags at $0.402 per pound, plus administrative fee, for a total cost of $43,137.80. Availability of Funds: xx General Fund .Water/Wastewater _ Capital Improvement_ General Revenue Sharing Other Account Number: 001-7072-532-2015 Funds Available: XX YES NO Approved for City Council A2:enda ...... '. "":' ~-;.. 05/12/98 .TUB 15:09 FAX - -- H-GAC CONTRACT ~RICES FOR _Plastic Bags_ iii 001 Agency: _City of La Porte Dept.: _Purchasing TO: _SusanKelley_ Date: _05/12/98_ FROM: DianeDomagas 800/926-0234. 713/993-4545 · FAX 713J993-4548 rrM QTY DESCRIPl'ION UNIT $ EXT$ 1 105.281 #'s PLASTIC BAGS: 30x37x2 mil, 52 bagslroll in poly $.4021# $42.232.96 sleeves per box, 12 box per layer, 2 layer per pallet . . BLAcK, FLAT. 711.360 BAGS TOTAL Subtotal $42,232.96 Admin. Fee $904.84 Total $43,137.80 NOTES/COMMENTS: - FOB Destination to your delivery site - Delivery can be arrangcd for July 20th dclivcry. -Contract expires June 30, 1998; however, your order will be protected. - Tmcklng line will contact 24 or 48 hours prior to delivery to make arrangements. . ". Susan, More than likely. our contract will be extended with Bemis for at least 3 to 6 months depending the market for raw materials. Please contact me if you have any questions at 713/993-4545. e CITY OF LA PORTE e .. liiijfi:lll~iiiiiiiiiiiil!:i:liir!'!ij[,,\~ilrlii~li:~:!iiiiii:i:i~~li:ili'ii:i'liiri:liiiilrfJiili:ili ;:;:;:;:;:::;:;:;:;:;:::;:;:;:;:;:;:;:;:;:;:;:;:;:;:::;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:;:; May 18, 1998 TO: Mayor and City Council FROM: Robert T. Herrera, City Manager ~~ Guy Rankin, Director of Planning SUBJECT: This morning I was visited by Guy Rankin, and he asked if he could rescind his letter of resignation. I told Mr. Rankin that I would welcome his offer to rescind his notice. RTH:cjb c Guy Rankin Personnel