Res 007-2010 1/5/2010 RESOLUTION NO. (�7 �OIC�
Resolution Approving A Professional Services Agreement With Biggs
8� Mathews, Inc For Engineering Services For Emergency Action
Plans For City-Owned Dams In The Amount Of $200,900
WHEREAS, the City of Wichita Falls desires to enter into an engineering services
contract for the preparation of Emergency Action Plans for the Lake Arrowhead Dam,
Lake Kickapoo Dam, Lake Wichita Dam, Lake Diversion Dam, and the impoundment
berms around the Secondary Reservoir and the Presedimentation Basin at Jasper Water
Treatment Plant; and,
WHEREAS, Biggs & Mathews, Inc. is proposing to do this work for an amount of
$200,900.00.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF WICHITA FALLS, TEXAS, THAT:
The City Manager is authorized to execute the attached Professional Services
Agreement Between the City of Wichita Falls and Biggs & Mathews, Inc for
Engineering Services for the Emergency Action Plans for Dams Project in the
amount of $200,900.00, with changes to such agreement as approved by the City
Attorney.
PASSED AND APPROVED this the 5th day of January, 2010.
M O
ATTEST:
' Clerk
Professional Services Agreement between the City of Wichita Falls and
Biggs & Mathews, Inc for Engineering Services for the
Emergency Action Plans for Dams Project
OWNER: The City of Wichita Falls; Attn: Director of Public Works, P.O. Box 1431, Wichita Falls, Texas 76307
ENGINEER: Biggs & Mathews, Inc; 2500 Brook Avenue, Wichita Falls, Tx 76301
PROJECT: ENGINEER will prepare plans for the Emergency Action Plans for Dams Project.
SCOPE: Prepare an Emergency Action Plan (EAP) for the dams associated with the following impoundments: Jasper
Reservoir, Lake Arrowhead, Lake Diversion, Lake Kickapoo, Lake Wichita, and Secondary Reservoir. The EAP's
shall follow the guidelines, format, and time frame as required by the TCEQ as stated in 30 TAC 299.61. A
preliminary EAP shall be submitted for each impoundment to the City for review, and a final EAP, approved by the
City, shall be submitted to the TCEQ. Lastly, all revisions and/or responses, as required for approval by the TCEQ,
will be made in a timely manner.
TIMETABLE: ENGINEER shall complete the following tasks on or before the following dates:
1. Completion of preliminary EAP's November 1, 2010
2. Completion of final EAP's December 31, 2010
The ENGINEER shall not be held responsible for failure to meet the aforementioned timetables in the event that the
cause of delay is not the fault of the ENGINEER or the ENGINEER' S subcontractors.
PAYMENT:
1. Payment for Basic Services. OWNER agrees to pay the following amounts for Basic Services rendered
pursuant to this contract, a total amount not to exceed $200,900, subject to completion of the following phases:
Phase Percentage of Project Amount
1. Preliminary EAP's 65% $130,585
2. Final EAP's 25% $50,225
3. TCEQ Approval 10% $20,090
Total 100% $200,900
2. Payment for Additional Services. OWNER shall pay ENGINEER for Additional Services requested and
rendered as follows:
2.1. Payment for Additional Services of Engineer rendered under this contract shall be paid for at the following
rate when supported by invoices.
Engineer - Principal $130.00
Mileage Expense (outside 50 mile radius of Wichita Falls) ......$ 0.505/mile
Actual cost of materials required for the job and expenses shall be charged at cost plus 10%.
Overnight Expense/man — Actual Expenses
2.2. Far expenses for Additional Services, ENGINEER shall be compensated at the actual cost to ENGINEER
based on rates referenced above or as previously agreed upon in writing. Where field parties are used, expenses
shall include charges for the use of any special instruments and equipment, including marine equipment, and
expendable items such as stakes and monuments.
3. Times of Payments:
3.1. Times of Payments---ENGINEER shall submit monthly statements for Basic and Additional Services
rendered. For Basic Services, the statements will be based upon ENGINEER'S estimate of the proportion of the
total services actually completed at the time of billing. OWNER shall make prompt monthly payments in response
to ENGINEER'S monthly statements. Upon conclusion of each phase of Basic Services, OWNER shall pay such
additional amount, if any, as may be necessary to bring total compensation paid on account of such phase to the
following percentages of total compensation payable for all phases of Basic Services:
3.2. Past-due Payments---OWNER agrees to pay a charge of '/z% per month on all invoiced owed amounts not
paid within 30 days of the date of the invoice, calculated from the date of the invoice. In addition, ENGINEER
may, after giving 10 days' written notice to OWNER, suspend services under this Agreement until the ENGINEER
has been paid in full all amounts due for services and expenses.
OWNER'S REPRESENTATIVE: Russell Schreiber, Director of Public Works, City of Wichita Falls
SERVICES OF ENGINEER-- ENGINEER shall perform professional engineering services as hereinafter stated
which include customary incidental engineering services:
1. Preliminary EAP's Phase. ENGINEER shall:
1.1. Consult with OWNER to clarify and define OWNER'S requirements for the Project and review available data.
1.2. Collect field information needed to complete design of the Project.
1.3. Advise OWNER of the need to provide or obtain from others data or additional services, and act as
OWNER'S representative in connection with any such services acquired from others.
1.4. Prepare a draft EAP for each dam in accordance with the guidelines set forth by the TCEQ in 30 TAC 299.61.
1.4.1. Determine potentially inundated area by defining dam-break flood profiles downstream from the dam.
1.4.2. Prepare inundation maps which clearly depict the flooded areas from a dam break.
1.43. Identify those situations or triggering events that could trigger an emergency condition and require
action.
1.4.4. Evaluate the warning time available for the various triggering events.
1.4.5. Identify all jurisdictions, agencies, and individuals who will be involved in the EAP and coordinate the
development of the EAP with the other parties.
1.4.6. Identify primary and auxiliary communications systems, both internal (between persons at the dam) and
external (between dam personnel and outside entities).
1.4.7. List and prioritize the order of notification for all persons and entities involved in the notification
process, and draft the Notification Flow Chart.
1.5. Furnish five copies of the above draft EAP's.
2. Final EAP's Phase. ENGINEER shall:
2.1. Provide structured reviews for OWNER'S staff of the draft EAP's for each dam.
2.2. Attend up to 3 meetings as deemed necessary with OWNER'S officials.
2.3. Attend one coordination meeting with all local agencies and other parties on the notification list to receive
their review and comments of the draft EAP's.
2.4. Upon OWNER'S approval of the draft EAP's, furnish bound copies of the EAP's and all applications or
supporting documents necessary for the submission to the TCEQ Dam Safety Program for comments.
2.4. Furnish, when necessary, all data required by OWNER for the development of any applications or supporting
documents for state or federal government permits, grants, or planning advances, provided that such data shall not
extend beyond that actually developed in the performance of other provisions of this contract.
3. TCEQ Approval Phase. ENGINEER shall:
3. L Make any necessary revisions and obtain the necessary signatures for plan and submit for approval by TCEQ.
3.2. Upon TCEQ approval, furnish at least 10 physical copies and a digital copy of the above EAP's and review
them in person with the OWNER'S REPRESENTATIVE. Physical copies will be provided as bound three ring
binders, and a digital copy will be provided in PDF (for text) and Autocad 2007 (for graphics) format.
4. Additional Services.
4.1 General. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional
Services of the following types. To the extent these additional services are not included in the Basic Services, they
will be paid for by the OWNER as indicated in the PAYMENT section of this contract.
4.1.1. Preparation of applications for governmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements; review of the effect on the Project
of any such environmental statements and documents prepared by others; and assistance in obtaining
approvals of authorities having jurisdiction over the anticipated environmental impact of the Project.
4.1.2. Services to make detailed investigation of existing conditions or facilities, or to verify the accuracy of
drawings or other information furnished by OWNER, except as necessary for the proper design and
construction of the Project.
4.1.3. Services resulting from significant changes in extent of the Project, including, but not limited to,
changes in size, complexity, OWNER'S schedule, or character of construction; and revising previously
accepted studies, reports, design documents or Contract Documents when such revisions are due to causes
beyond ENGINEER'S control.
4.1.4. Providing renderings or models for OWNER'S use.
4.1.5. Preparation of any special reports required for marketing of bonds.
4.1.6. Furnishing soil and foundation tests and borings.
4.1.7. Furnishing reports and maps to establish or revise flood plain boundaries in a format acceptable to
FEMA.
4.1.8. Providing detailed mill, shop and/or laboratory inspection of materials or equipment.
4.1.9. Investigations involving detailed consideration of operation and maintenance expenses; the preparation
of feasibility studies and appraisals; and assistance in obtaining fmancing for the Project.
4.1.10. Furnishing the services of special consultants for purposes other than the normal engineering
incidental to the Project, and providing data or services of the types described in paragraph 3.2 when
OWNER authorizes ENGINEER to provide such data or services in lieu of OWNER furnishing them. For the
purposes of this Contract, services of a special consultant will be allowed only when the need is confirmed by
the OWNER'S REPRESENTATIVE.
4.1.11. Applying for permits from all governmental authorities having jurisdiction over the Project and
furnishing such approvals and consents from others as may be necessary for completion of the Project.
4.1.12. Services resulting from the award of more than one prime contract for construction, materials,
equipment or services for the Project, and services resulting from the arranging for performance by persons
other than the Contractor and administering OWNER'S contracts for such services.
4.1.13. Services in connection with change orders to reflect changes requested by OWNER if the resulting
change in compensation for Basic Services is not commensurate with the change in services rendered; services
after the award of the Contract in evaluating substitutions proposed by the Contractor which require extensive
revisions to Drawings and Specifications; and services resulting from significant delays, changes or price
increases occurring as a result of material, equipment or energy shortages.
4.1.14. Services during out-of-town travel required of ENGINEER other than visits to the site as required by
Section 1.
4.1.15. Additional or extended services during construction made necessary by (1) work damaged by fire or
other cause during construction, (2) a significant amount of defective or neglected work of Contractor, (3)
prolongation of the contract time of the Contract by more than sixty days, (4) acceleration of the progress
schedule involving services beyond normal working hours, and/or (5) default by Contractor.
4.1.16. Services after completion of the Construction Phase, such as inspections during any guarantee period
called for in the Contract.
4.1.17. Serving as a consultant or witness for OWNER in any litigation, public hearing or other legal or
administrative proceeding involving the Project except as agreed to under Basic Services.
4.2. Whenever the need for any Additional Services described herein results from any negligence, mistake,
oversight or other fault on the part of ENGINEER, the cost of these services shall be deemed to be included in
OWNER'S payments to ENGINEER far Basic Services. Any such Additional Services not performed by
ENGINEER that would otherwise be paid separately by OWNER shall be paid for by ENGINEER.
GENERAL CONDITIONS:
1. Termination—OWNER may terminate this Agreement upon 10 days written notice to ENGINEER with the
understanding that all services being performed under this Agreement shall cease upon the date specified in such
notice. In the event of early termination, ENGINEER shall invoice OWNER for all services completed and shall
be compensated in an amount corresponding to the amount designated as compensation for each phase of the work
satisfactarily completed and accepted plus an amount corresponding to the percentage of work satisfactorily
completed and submitted to Owner for any phase partly completed on the effective date of the termination.
2. Ownership & Maintenance of Documents--All documents and digital files prepared and/or assembled by
ENGINEER under this agreement shall become the property of the OWNER and shall be delivered to OWNER
without restriction on future use. OWNER's re-use of documents on future projects will be at the sole risk of
OWNER. ENGINEER may make copies of any and all documents for its files and re-use information contained
therein. ENGINEER will maintain project records for three years after the OWNER has made fmal payment to the
contractor and all other pending matters are closed and provide copies thereof to OWNER if requested.
3. Controlling Law--This agreement is performable and is to be governed by the law applicable in Wichita Falls,
Texas. Sole venue for any action arising under this agreement shall be in Wichita County, Texas.
4. Assignment of Contract--ENGINEER shall not assign, sublet or transfer any rights under or interest in
(including, but without limitations, monies that may become due or monies that are due) this Agreement without
the written consent of the other. Unless specifically stated to the contrary in any written consent to an assignment,
no assignment will release or discharge the assignor from any duty or responsibility under this Agreement.
Nothing contained in this paragraph shall prevent ENGINEER from employing independent consultants,
associates, subcontractors, and employees to assist it in the performance of services hereunder.
5. No Third-Party Beneficiaries--Nothing herein shall be construed to give any rights or benefits to anyone other
than OWNER and ENGINEER.
6. Independent Contractor--In performing services under this agreement, the relationship between OWNER and
ENGINEER is that of independent contractor, and OWNER and ENGINEER by the execution of this Agreement
do not change the independent contractor status of ENGINEER. No term or provision of this agreement or act of
ENGINEER in the performance of this Agreement shall be construed as making ENGINEER or any agent, servant
or employee of ENGINEER the agent, servant or employee of OWNER.
7. Indemnity--ENGINEER aerees to release, defend, indemnify, and hold the OWNER whole and harmless
against anv and all claims, suits, and actions for damages, costs, and expenses to persons or propertv that maYarise
out of, or be occasioned by or from any ne�gent act, error or omission of ENGINEER or any officer, a�
servant, emplovee or subcontractor of ENGINEER in the execution or performance of this contract. In the event
of notice of a claim to which this indemnity mi�pply, so much of the monev due the ENGINEER under this
contract as shall be reasonablv considered necessarv bv the OWNER mav be retained far the use of the OWNER,
until all suits, actions, and claims shall have been settled and satisfactory evidence to that effect furnished the
OWNER. The ENGINEER further agrees to release, defend, indemnify, and hold harmless the OWNER and the
O_WNER's officers, a�ents, and employees from liability for anv claims of injuries or damage made by or on
behalf of ENGINEER or anv of ENGINEER's officers, a�ents, or emplovees resultine from the performance or
attempted performance of this contract reeardless of whether the injurv or damag,e is caused in whole ar in part by
anv acts or omissions of OWNER or any hidden or a�parent condition of propert,y owned or controlled bv the
OWNER. This indemnitv shall not a�plv to anv claim to the extent to which ENGINEER is prohibited from
indemnifyin�a governmental entity pursuant to Tex. Local Gov't Code § 271.904 or other law.
This agreement and said attachments may only be amended, supplemented, modified or canceled by a duly executed
written instrument.
EXECUTED, this the day of , 200_
OWNER: City of Wichita Falls, Texas ENGINEER:
Darron Leiker, City Manager
(seal) (seal)
ATTEST: ATTEST:
Lydia Ozuna, City Clerk
FORM APPROVED:
Miles Risley, City Attorney
�/� / �
• Professional Services Agreement betwecn the City of Wichita Falls and
Biggs & Mathews, Inc for Engineering Services for the
Emergency Action Plans for Dams Project
OWNER: The City of Wichita Falls; Attn: Director of Public Works, P.O. Box 1431, Wichita Falls, Texas 76307
ENCINEER: Biggs & Mathews, Inc; 2500 Brook Avenue, Wichita Falls, Tx 7630]
PROJECT: ENGINEER will prepare plans for the Emergency Action Plans for Dams Project.
SCOPE: Prepare an Emergency Action Plan (EAP) for the dams associated with the following impoundments: Jasper
Reservoir, Lake Arrowhead, Lake Diversion, Lake Kickapoo, Lake Wichita, and Secondary Reservoir. The EAP's shall follow
the guidelines, format, and time frame as required by the TCEQ as stated in 30 TAC 299.61. A preliminary EAP shall be
submitted for each impoundment to the City for review, and a final EAP, approved by the City, shall be submitted to the TCEQ.
Lastly, all revisions and/or responses, as required for approval by the TCEQ, will be made in a timely manner.
TIMETABLE: ENGINEER shall complete the following tasks on or before the following dates:
1. Completion of preliminary EAP's November 1, 2010
2. Completion of final EAP's December 3l, 2010
The ENGINEER shall not be held responsible for failure to meet the aforementioned timetables in the event that the cause
of delay is not the fault of the ENGINEER or the ENGINEER' S subcontractors.
PAYMENT:
1. Payment for Basic Services. OWNER agrees to pay the following ainounts for Basic Services rendered pursuant to
this contract, a total amount not to exceed $200,900, subject to coinpletion of the following phases:
Phase Percentage of Project Amount
1. Preliminary F,AP's 65% $130,585
2. Final EAP's 25% $50,225
3. TCEQ Approval 10% $20,090
Total 100% $200,900
2. Payment for Additional Services. OWNER shall pay ENGINEER for Additional Services requested and rendered as
follows:
2.1. Payment for Additional Services of Engineer rendered under this contract shall be paid for at the following rate when
supported by invoices.
Engineer - Principal $130.00
Mileage Expense (outside 50 mile radius of Wichita Falls) ......$ 0.505/mile
Actual cost of materials required for the job and expenses shall be charged at cost plus 10%.
Overnight Expense/man — Actual Expenses
2.2. For expenses for Additional Services, ENGINF,ER shall be compensated at the actual cost to ENGINEER based on
rates referenced above or as previously agreed upon in writing. Where field parties are used, expenses shall include charges
for the use of any special instruments and equipment, including marine equipment, and expendable items such as stakes and
monuments.
3. Times of Payments:
3.1. Times of Payments---ENGINEER shall submit monthly statements for Basic and Additional Services rendered. For
Basic Services, the statements will be based upon ENGINEER'S estimate of the proportion of the total services actually
completed at the time of billing. OWNER shall make prompt monthly payments in response to ENGINEER'S monthly
statements. Upon conclusion of each phase of Basic Services, OWNER shall pay such additional amount, if any, as may be
necessary to bring total compensation paid on account of such phase to the following percentages of total compensation
payable for all phases of Basic Services:
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3.2. Past-due Payments---OWNER agrees to pay a charge of'/2% per month on all invoiced owed amounts not paid within
30 days of the date of the invoice, calculated from the date of the invoice. In addition, ENGINEER may, after giving 10
days' written notice to OWNER, suspend services under this Agreement until the ENGINEER has been paid in full all
amounts due for services and expenses.
OWNGR'S REPRESENTATIVE: Russell Schreiber, Director of Public Works, City of Wichita Falls
SERVICES OF EIVG 1 N EER-- ENGINEER shall perform professional engineering services as hereinafter stated which include
customary incidental engineering services:
I. Preliminary EAP's Phase. ENGINEER shall:
1.1. Consult with OWNER to clarify and define OWNER'S requirements for the Yroject and review available data.
1.2. Collect field information needed to coinplete design of the Project.
1.3. Advise OWNER of the need to provide or obtain from others data o!• additional seivices, and act as OWNER'S
representative in connection with any such services acyuired from others.
1.4. Prepare a draft EAP for each dam in accordance with the guidelines set forth by the TCEQ in 30 TAC 299.61.
1.4.1. Detern�ine potentially inundated area by defining dam-break flood profiles downstream from the dam.
1.4.2. Prepare inundation inaps which clearly depict the flooded areas from a dam break.
1.4.3. Identify those situations or triggering events that could trigger an emergency condition and require action.
1.4.4. Evaluate the warning time available for the various triggering events.
1.4.5. Identify all jurisdictions, agencies, and individuals who will be involved in the EAP and coordinate the
development of the EAP with the other parties.
1.4.6. Identify primary and auxiliary communications systems, both internal (between persons at the dam) and external
(between dam personnel and outside entities).
1.4.7. List and prioritize the order of notification for all persons and entities involved in the notification process, and
draft the Notification Flow Chart.
1.5. Furnish five copies of the above draft EAP's.
2. Final EAP's Phase. ENGINEER shall:
2.1. Provide structured reviews for OWNER'S staffofthe draft EAP's for each dam.
2.2. Attend up to 3 meetings as deemed necessary with OWNER'S officials.
2.3. Attend one coordination meeting with all local agencies and other parties on the notification list to receive their review
and comments of the draft EAP's.
2.4. Upon OWNER'S approval of the draft EAP's, furnish bound copies of the EAP's and all applications or supporting
documents necessary for the submission to the TCEQ Dam Safety Program for comments.
2.4. Furnish, when necessary, all data required by OWNER for the development of any applications or supporting
documents for state or federal government permits, grants, or planning advances, provided that such data shall not extend
beyond that actually developed in the perfonnance of other provisions of this contract.
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. ' 3. TCEQ Approval Phase. LNGINEER shall:
3.1. Make any necessary revisions and obtain the necessary signatures for plan and submit for approval by TCEQ.
3.2. Upon TCEQ approval, furnish at least 10 physical copies and a digital copy of the above EAP's and review them in
person with the OWNER'S REYRESENTA'I'IVE. Physical copies will be provided as bound three ring binders, and a
digital copy will be provided in PDF (for text) and Autocad 2007 (for graphics) format.
4. Additional Services.
4.1 General. If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services of
the foliowing types. To the extent these additional services are not included in the Basic Services, they will be paid for by
the OWNER as indicated in the PAYMENT section of this contract.
4.1.1. Preparation of applications for governmental grants, loans or advances in connection with the Project;
preparation or review of environmental assessments and impact statements; review of the effect on the Project of any
such enviromnental statements and documents prepared by others; and assistance in obtaining approvals of authorities
having jurisdiction over the anticipated envirorunental impact of the Project.
4.1.2. Services to make detailed investigation of existing conditions or facilities, or to verify the accuracy of drawings
or other information furnished by OWNER, except as necessary for the proper design and construction of the Project.
4.1.3. Services resulting from significant changes in extent of the Project, including, but not limited to, changes in size,
complexity, OWNER'S schedule, or character of construction; and revising previously accepted studies, reports, design
documents or Contract Documents when such revisions are due to causes beyond ENGINEER'S control.
4.1.4. Pcoviding renderings or models for OWNER'S use.
4.1.5. Preparation of any special reports required for marketing of bonds.
4.1.6. Furnishing soil and foundation tests and borings.
4.1.7. Furnishing reports and maps to establish or revise flood plain boundaries in a format acceptable to FEMA.
4.1.8. Providing detailed mill, shop and/or laboratory inspection of materials or equipment.
4.1.9. Investigations involving detailed consideration of operation and maintenance expenses; the preparation of
feasibility studies and appraisals; and assistance in obtaining financing for the Project.
4.1.10. Furnishing the services of special consultants for purposes other than the nortnal engineering incidental to the
Project, and providing data or services of the types described in paragraph 3.2 when OWNER authorizes ENGINEER
to provide such data or services in lieu of OWNER furnishing them. For the purposes of this Contract, services of a
special consultant will be allowed only when the need is confirmed by the OWNER'S REPRESENTATIVE.
4.1.11. Applying for permits from all governmental authorities having jurisdiction over the Project and furnishing such
approvals and consents fi•om others as may be necessary for completion of the Project.
4.1.12. Services resulting from the award of more than one prime contract for construction, materials, equipment or
services for the Project, and services resulting from the arranging for performance by persons other than the Contractor
and administering OWNER'S contracts for such services.
4.1.13. Services in connection with change orders to reflect changes requested by OWNER if the resulting change in
compensation for Basic Services is not commensurate with the change in services rendered; services after the award of
the Contract in evaluating substitutions proposed by the Contractor which require extensive revisions to Drawings and
Specifications; and services resulting from significant delays, changes or price increases occurring as a result of
material, equipment or energy shortages.
4.1.14. Ser� ices during •� �t-of-town trave; rcyuired of F.NGINEER otlier than v:sits ±o the ,:±e as r�aui:ed by Sectior� l.
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4.1.15. Additional or extended services during construction made necessary by (1) work damaged by fire or other
cause during construction, (2) a significant amount of defective or neglected work of Contractor, (3) prolongation of
the contract time of the Contract by more than sixty days, (4) acceleration of the progress schedule involving services
beyond normal working hours, and/or (5) detault by Contractor.
4.1.16. Services after completion of the Construction Phase, such as inspections during any guarantee period called for
in the Contract.
4.1.17. Serving as a consultant or witness for OWNER in any litigation, public hearing or other legal or administrative
proceeding involving the Project except as agreed to under Basic Seivices.
4.2. Whenever the need for any Additiona] Services described herein results fi•om any negligence, mistake, oversight or
other fault on the part of F.NGINEER, the cost of these services shall be deemed to be included in OWNER'S payments to
ENGINEER for Basic Services. Any such Additional Services not performed by ENGINEER that would otherwise be paid
separately by OWNER shall be paid for by ENGINEER.
GENERAL CONDITIONS:
1. Termination—OWNER may terminate this Agreement upon 10 days written notice to ENGINEER with tlie
understanding that all services being perfonned under this Agreement shall cease upon the date specified in such notice. In
the event of early termination, ENGINEER shall invoice OWNER far all services completed and shall be compensated in
an amount corresponding to the amount designated as compensation for each phase of the work satisfactorily completed and
accepted plus an amount corresponding to the percentage of work satisfactorily completed and submitted to Owner for any
phase partly completed on the effective date of the termination.
2. Ownership & Maintenanee of Documents--All documents and digital files prepared and/or assembled by ENGINEER
under this agreement shall become the property of the OWNER and shall be delivered to OWNER without restriction on
future use. OWN ER's re-use of documents on future projects will be at the sole risk of OWNER. ENGINEER may make
copies of any and all documents for its files and re-use information contained therein. ENGINEER will maintain project
records for three years after the OWNER has made final payment to the contractor and all other pending matters are closed
and provide copies thereof to OWNER if requested.
3. Controlling Law--This agreement is performable and is to be governed by the law applicable in Wichita Falls, Texas.
Sole venue for any action arising under this agreement shall be in Wichita County, Texas.
4. Assignment of Contract--ENGINEER shall not assign, sublet or h any rights under or interest in (including, but
without limitations, monies that may become due or monies that are due) this Agreement without the written consent of the
other. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or
discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall
prevent ENGINEER from employing independent consultants, associates, subcontractors, and employees to assist it in the
performance of services hereunder.
5. No Third-Party Bene�ciaries--Nothing herein shall be construed to give any rights or benefits to anyone other than
OWNER and ENGINEER.
6. Independent Contractor--In performing services under this agreement, the relationship between OWNER and
ENGINEER is that of independent contractor, and OWNER and ENGINEER by the execution of this Agreement do not
change the independent contractor status of ENGINEER. No term or provision of this agreement or act of ENGINEER in
the performance of this Agreement shall be construed as making ENGINEER or any agent, servant or employee of
ENGINEER the agent, servant or employee of OWNER.
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/ • •
7. Indemnity--ENGINEER agrees to releatie defend indemnifv and hold the OWNER whole and har►nless a�ainst anY
and all claimti suits and actions for damages costs and expenses to persons or properry that may arise out of, or be
occasioned bv or from anv ne�ligent act error or oinission of ENGINEER or anv officer, a�ent, servant, emplovee or
subcontractor of ENGINEER in the execution or perfoimance of this contract. In the event of notice of a claim to which
this indemnity miQht applv so much of the money due the ENGINEER under this contract as shall be reasonablv
considered necessarv by the OWNER may be retained for the use of the OWNER, until all suits, actions, and claims shall
have been settled and satisfactorLvidence to that effect furnished the OWNER. The ENGINEER further agrees to release,
defend indemnify and hold harmless the OWNER and the OWNER's officers, agents, and emplovees fi•om liabilitv for anY
claims of injuries or damage made by or on behalf of ENGINEER or any of ENGINEER's office►•s, a�ents, or emplovees
resultinp from the performance or attempted performance of this contract regardless of whether the injury or damaae is
caused in whole or in Qart by anv acts or omissions of OWNER or anv hidden or apparent condition of propertv owned or
controlled bv the OWNER. This indemnity shall not apply to anv claim to the extent to which ENGINEER is prohibited
from indemni inga Qovernmental entitypursuant to Tex. Local Gov't Code � 271.904 or other law.
This agreement and said attachments may only be amended, supplemented, modified or canceled by a duly executed written
instrument.
EXECUTED, this the day of , 200_
WIVE . City of Wichita F s, Texas ENGINEGR: Biggs & Mathews, Inc.
( � 4
Da�r � er, City Man ger .E. Biggs, III P.E. President
(seal) (seal)
A TEST: ATTEST:
` �,
Lydia zu a, City Clerk Kerry aroney, P.E. Vice Presiden �--
FORM APPROVED:
/
isley, ity At
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