Ordinance No. 12,488ORDINANCE NO. 12,488
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT
WITH PIERCE GOODWIN ALEXANDER & LINVILLE, INC., FOR CONSULTING
SERVICES ASSOCIATED WITH THE POLICE FACILITY REPLACEMENT
PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN
AMOUNT NOT TO EXCEED FORTY -TWO THOUSAND AND N01100 DOLLARS
42,000.00); MAKING OTHER PROVISIONS RELATED THERETO; AND
PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City
Manager to execute and the City Clerk to attest to a Professional Services Agreement with Pierce
Goodwin Alexander & Linville, Inc., for consulting services associated with the Police Facility
Replacement Project. Said agreement is attached hereto as Exhibit "A" and incorporated herein for all
intents and purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Pierce
Goodwin Alexander & Linville, Inc., in an amount not to exceed FORTY -TWO THOUSAND AND
N01100 DOLLARS ($42,000.00) for consulting services in accordance with the agreement authorized in
Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty -five percent
25 %).
Section 4: This ordinance shall take effect immediately
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the
Baytown this the 27ih day of February, 2014.
A
BRYSCH,
APPROVED AS TO FORM:
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and after its passage by the
of the City Council of the City of
DONCARLOS,
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and after its passage by the
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Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the day of February, 2014 ("Effective Date"),
Between
The City of Baytown ( "OWNER")
and
Pierce Goodwin Alexander & Linville, Inc. ( "CONSULTANT ").
OWNER intends to engage CONSULTANT to perform design services for the Police Facility Replacement Project
and related site work (the "Project") for and on behalf of the OWNER. Such services shall include, but not be
limited to, the following:
Preliminary Design Phase
Final Design Phase;
Bid Phase; and
D Construction Administration.
The project will serve as the main police station for the OWNER. The final size of the project will be deteremined
in the Needs Assessment Phase of the Project. During the programming Phase CONSULTANT will investigate
whether a single building or a multiple building campus will be provided and whether the building(s) will be one
story or multiple stories. Site work shall be included, which shall consist of the construction of new surface parkingandotherrelatedsiteimprovements.
OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 1 of 12
TABLE OF CONTENTS Pane
ARTICLE 1- SERVICES OF CONSULTANT .................................................................................. ............................... 31.01 Scope .................................................................................................................................. ............................... 3
ARTICLE 2 - OWNER'S RESPONSIBILITIES .................................... ............................... ... ............................... 3
2.01 General ............................................................................................................................... ............................... 3
ARTICLE 3 - TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3
3.01 General ............................................................................................................................... ............................... 3
3.02 Suspension .......................................................................................................................... ............................... 3
ARTICLE 4 - PAYMENTS TO CONSULTANT ................................................................................ ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ................ ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................ ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost .......................................................................... ............................... 4
5.02 Designing-to Construction Cost Limit ...... ............................ 4
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................. ............................... 4
6.01 Standards of Performance .................................................................................................. ............................... 4
6.02 Authorized Project Representatives ................................................................................... ............................... 5
6.03 Design without Construction Phase Services .................................................................... ............................... 5
6.04 Use of Documents .............................................................................................................. ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law ................................................................................................................. ............................... 7
6.08 Successors, Assigns, and Beneficiaries ............................................................................. ............................... 7
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................ ............................... 7
6.11 Allocation of Risks ............................................................................................................. ............................... 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severability ......................................................................................................................... ............................... 8
6.15 Waiver .. .............................................................................................................................. ............................... 8
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS .............................................................................................................. ............................... 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .................................................................. .............................11
8.01 Exhibits Included .............................................................................................................. ............................... I 1
8.02 Total Agreement ................................................................................................................. .............................12
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 2 of 12
ARTICLE 1- SERVICES OF CONSULTANT
1.01 Scope
A. CONSULTANT shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. Upon issuance of a notice to proceed by the
OWNER, CONSULTANT is authorized to begin Basic
Services as set forth in Exhibit A.
C. (Not Used).
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TIMES FOR RENDERING SERVICES
3.01 General
A. (Modified) CONSULTANT's services and
compensation under this Agreement have been agreed to for
the design of the Project together with other services specified
in Exhibit A. CONSULTANT's obligation to render services
hereunder will be for whatever period necessary for the final
completion of said services.
B. (Not Used).
C. (Modified) For purposes of this Agreement the term
day" means a calendar day of 24 hours.
3.02 Suspension
A. (Not used).
B. (Modified) If CONSULTANT's services are
delayed or suspended in whole or in part by OWNER,
CONSULTANT may be entitled to equitable adjustment of
rates and amounts of compensation provided for elsewhere in
this Agreement to reflect, reasonable costs incurred by
CONSULTANT in connection with such delay or suspension
and reactivation and the fact that the time for performance
under this Agreement has been revised, unless such delay or
suspension is caused in whole or in part by the
CONSULTANT, its officers, agents, or employees. If
CONSULTANT causes or contributes to the delay or
suspension, CONSULTANT shall have no right to seek
additional compensation.
ARTICLE 4 - PAYMENTS TO CONSULTANT
4.01 Methods of Payment for Services and
Reimbursable Expenses of CONSULTANT
A. For Basic Services. OWNER shall pay
CONSULTANT for Basic Services performed or furnished
under Exhibit A, Part 1, as set forth in Exhibit C.
B. For Additional Services. OWNER shall pay
CONSULTANT for Additional Services performed or
furnished under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.B, OWNER shall pay CONSULTANT for Reimbursable
Expenses inured by CONSULTANT and its Consultants as
set forth in Exhibit C. However, all expenses associated with
meals and lodging must be approved in writing by OWNER
prior to CONSULTANT incurring any expense associated
therewith; otherwise, the parties hereto agree and understand
that OWNER shall not be liable and CONSULTANT shall
not make a claim against OWNER for any such expenses.
4.02 Other Provisions Concerning Payments
A. Preparation of Invoices. Invoices will be prepared
in accordance with OWNER's standard processing practices
and will be submitted to OWNER monthly via mail or email
by CONSULTANT, unless otherwise agreed.
CONSULTANT shall supply detailed back -up information
along with each invoice in order for the OWNER to
effectively evaluate the fees and charges. The amount billed
in each invoice will be calculated as set forth in Exhibit C.
Invoices shall be received by the OWNER not later than sixty
60) days from the date the CONSULTANT and/or its
subconsultants perform the services or incur the expense.
Failure by CONSULTANT to comply with the requirements
herein in a timely manner with this requirement shall result in
the CONSULTANT'S invoice being denied.
B. (Modified) Payment of Invoices. Invoices are due
and payable within 30 days after the receipt of the invoice and
the necessary backup information. If OWNER fails to make
any payment due CONSULTANT for services and expenses
within 30 days after receipt of CONSULTANT's invoice and
the required backup documentation therefor, the amounts due
CONSULTANT will accrue interest at the rate set forth in
Section 2251.025 of the Texas Govenunent Code after the
30th day. CONSULTANT may after giving seven days'
written notice to OWNER suspend services under this
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 3 of 13
Agreement until CONSULTANT has been paid in full all
amounts due for services, expenses, and other related charges.
However, it is expressly understood and agreed that
CONSULTANT will not charge any interest or penalty as set
forth herein on any portion of an invoice that is disputed
and/or withheld in accordance with paragraph 4.02 and that
CONSULTANT will not suspend services under the
agreement on account of a disputed invoice or on account of
monies withheld. All payments will be credited first to
principal and then to interest.
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.
In the event of any termination under section 6.06,
CONSULTANT 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 provided
all instruments of service have been tendered to the OWNER.
2. (Not Used)
E. (Modified) Records of CONSULTANT's Costs.
Records of CONSULTANT's costs pertinent to
CONSULTANT's compensation under this Agreement shall
be kept in accordance with generally accepted accounting
practices. Copies of such records will be made available to
OWNER upon request at no cost to OWNER.
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
CONSULTANT'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 CONSULTANT's estimated total
compensation.
G. (Added) Indebtedness. If CONSULTANT, at any
time during the term of this agreement, incurs a debt, as the
word is defined in section 2-662 of the Code of Ordinances
of the City of Baytown, it shall immediately notify the
OWNER's Director of Finance in writing. If the OWNER's
Director of Finance becomes aware that the
CONSULTANT has incurred a debt, the OWNER's
Director of Finance shall immediately notify the
CONSULTANT in writing. If the CONSULTANT does
not pay the debt within 30 days of either such notification,
the OWNER's Director of Finance may deduct funds in an
amount equal to the debt from any payments owed to the
CONSULTANT under this Agreement, and the
CONSULTANT waives any recourse therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. CONSULTANT's opinions of probable
Construction Cost provided for herein are to be made on the
basis of CONSULTANT's experience and qualifications and
represent CONSULTANT's best judgment as an experienced
and qualified professional generally familiar with the
industry. However, since CONSULTANT 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, CONSULTANT cannot and does not guarantee
that proposals, bids, or actual Construction Cost will not vary
from opinions of probable Construction Cost prepared by
CONSULTANT. If OWNER wishes greater assurance as to
probable Construction Cost, OWNER shall employ an
independent cost estimator as provided in Exhibit B.
5.02 (Not Used)
5.03 Opinions of Total Project Costs
A. (Not used).
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all services to be
performed or furnished under this Agreement will be the care
and skill ordinarily used by members of the applicable
disciplines, including, but not limited to, architects and
professional engineers, practicing under similar circumstances
at the same time and in the same locality.
B. (Modified) All professionals performing services
under this Agreement shall be responsible for the technical
accuracy of their services and documents resulting therefrom,
and OWNER shall not be responsible for discovering
deficiencies therein. CONSULTANT shall correct such
deficiencies without additional compensation except to the
extent such action is directly attributable to deficiencies in
OWNER-furnished information upon which CONSULTANT
is authorized to rely as provided in Section 6.0I.E.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 4 of 13
C. CONSULTANT shall perform or furnish
professional architectural, engineering and related services in
all phases of the Project to which this Agreement applies.
Such professionals shall be appropriately licensed and/or
registered to practice in the State of Texas. CONSULTANT
shall serve as OWNER's prime professional for the Project.
CONSULTANT shall employ such professionals as
CONSULTANT deems necessary to assist in the performance
or furnishing of the services. CONSULTANT shall not be
required to employ any professional unacceptable to
CONSULTANT.
D. CONSULTANT 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
CONSULTANT's scope of services, times of performance, or
compensation.
E. (Modified) OWNER shall be responsible for, and
CONSULTANT may rely upon, the accuracy and
completeness of all requirements, programs, instructions,
reports, data, and other information furnished by OWNER to
CONSULTANT pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER.
CONSULTANT may use such requirements, reports, data,
and information 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
CONSULTANT.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify CONSULTANT of any
variations from the language indicated in Exhibit E, "Notice
of Acceptability of Work," or of any other notice or
certification that CONSULTANT will be requested to provide
to OWNER or third parties in connection with the Project.
OWNER and CONSULTANT 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 CONSULTANT to provide the notices or
certifications requested.
H. (Modified) CONSULTANT shall not be required to
sign any documents, no matter by whom requested, that
would result in CONSULTANT's having to certify, guarantee
or warrant the existence of conditions whose existence
CONSULTANT cannot ascertain; provided, that
CONSULTANT has exercised due diligence and was not
otherwise required to certify, guarantee or wan-ant the
existence of such conditions.
I. During the Construction Phase, CONSULTANT
shall not supervise, direct, or have control over Contractor's
work, nor shall CONSULTANT 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. (Modified) CONSULTANT neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to furnish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
CONSULTANT from liability for any such failure about
which CONSULTANT knew or should have known existed
in the exercise of CONSULTANT's services under this
Agreement.
K. (Modified) CONSULTANT 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 CONSULTANT's own
employees and its consultants for which it is legally liable) 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
CONSULTANT.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, CONSULTANT and OWNER shall designate
specific individuals to act as CONSULTANT's and
OWNER's representatives with respect to the services to be
performed or furnished by CONSULTANT and
responsibilities of OWNER under this Agreement. Such
individuals shall have authority to transmit instructions,
receive information, and render decisions relative to the
Project on behalf of each respective party.
6.03(Not Used)
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
CONSULTANT grants to the OWNER an ownership interest
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 5 of 13
in the InWuments of Service. The CONSULTANT shall
obtain similar interests from its consultants consistent with
this Agreement. Within seven days of any termination or
expiration of this Agreement, the CONSULTANT shall be
required to tender to OWNER all Instruments of Service;
provided OWNER has paid all monies, excluding any
disputed amount, due and owing to CONSULTANT in
accordance with this Agreement. With such ownership
interest, it is expressly understood by the parties hereto that
the OWNER may use the Instruments of Service for any
purposes which the OWNER sees fit, including, but not
limited to, subsequent construction, reconstruction, alteration,
and/or repairs of the Project. As a condition to the OWNER's
use of the instruments of Service, the OWNER hereby
expressly agrees to remove the CONSULTANT's name and
all references to the CONSULTANT, and its consultants from
the Documents. The OWNER hereby releases any and all
claims which the OWNER could make arising out of or in
connection with any reuse of the documents by the OWNER.
This release of claims for the matters covered in this
Paragraph 6.04.A shall be for the benefit of the
CONSULTANT, its officers, and employees and sub -
consultants, as well as their successors and assigns.
B. (Modified) Copies of OWNER- furnished data that
may be relied upon by CONSULTANT are limited to the
printed copies that are delivered to CONSULTANT pursuant
to Exhibit B unless otherwise expressly stated or
communicated by OWNER. Files in electronic media format
of text, data, graphics, or of other types that are furnished by
OWNER to CONSULTANT are only for convenience of
CONSULTANT. Any conclusion or information 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 Iimited to the printed copies (also known as hard
copies) that are signed or sealed by the appropriate
professional. Files in electronic media format of text, data,
graphics, or of other types that are furnished by
CONSULTANT to OWNER are only for convenience of
OWNER. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk.
D. Because data stored in electronic media format 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.
The party delivering the electronic files will correct any errors
detected within the 60 -day acceptance period.
CONSULTANT shall not be responsible to maintain
documents stored in electronic media format after acceptance
by OWNER.
E. When transferring documents in electronic media
format, CONSULTANT 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 CONSULTANT at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
CONSULTANT from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
CONSULTANT to further compensation at rates to be agreed
upon by OWNER and CONSULTANT.
6.05 Insurance
A. CONSULTANT shall procure and maintain
insurance as set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
CONSULTANT, at OWNER's sole expense, provide
additional insurance coverage, increased limits, or revised
deductibles that are more protective than those specified in
Exhibit G. If so requested by OWNER, with the concurrence
of CONSULTANT, and if commercially available,
CONSULTANT shall obtain and shall require its 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. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 30 days'
written notice in the event of failure by the other
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 6 of 13
party to perform in accordance with the terms hereof
through no fault of the terminating party; or
b. By CONSULTANT upon seven days'
written notice if CONSULTANT is being requested
by OWNER to furnish or perform services contrary
to CONSULTANT's responsibility as a licensed
professional.
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 by OWNER effective upon the
receipt of notice by CONSULTANT.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located. Venue for all purposes
shall be in Harris County, Texas.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and CONSULTANT each is hereby bound
and the partners, successors, executors, administrators and
legal representatives of OWNER and CONSULTANT (and
to the extent permitted by paragraph 6.083 the assigns of
OWNER and CONSULTANT) are hereby bound to the other
party to this Agreement and to the partners, successors,
executors, administrators and Iegal representatives (and said
assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
B. Neither OWNER nor CONSULTANT 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 CONSULTANT 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 CONSULTANT and
not for the benefit of any other party. The OWNER
agrees that the substance of the provisions of this
paragraph 6.08.0 shall appear in the Contract
Documents.
6.09 Not Used.
6.10 Hazardous Environmental Condition
A. OWNER represents to CONSULTANT that to the
best of its knowledge a Hazardous Environmental Condition
does not exist.
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to CONSULTANT 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. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, CONSULTANT shall
have the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
CONSULTANT's scope of services does not include any
services related to a Hazardous Environmental Condition. In
the event CONSULTANT or any other party encounters a
Hazardous Environmental Condition, CONSULTANT 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.
E. OWNER acknowledges that CONSULTANT is
performing professional services for OWNER and that
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 7 of 13
CONSULTANT is not and shall not be required to become an
arranger," "operator," "generator," or "transporter" of
hazardous substances, as defined 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 CONSULTANT's activities under
this Agreement.
F. If CONSULTANT's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
CONSULTANTs terminating this Agreement for cause on 30
days' notice.
6.11 Allocation of Risks
A. Any provision or part of the Agreement held to be
void or unenforceable under any Laws or Regulations shall be
deemed stricken, and all remaining provisions shall continue
to be valid and binding upon OWNER and CONSULTANT,
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.
6.15 Waiver
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.
A. (Modified) Indemnification. See Exhibit K. 6.16 Headings
B. (Added) Notwithstanding anything to the contrary
contained in this Agreement, the OWNER and
CONSULTANT hereby agree that no claim or dispute
between the OWNER and CONSULTANT arising out of or
relating to this Agreement shall be decided by any
arbitration proceeding including, without limitation, any
proceeding under the Federal Arbitration Act (9 U.S.C.
Sections 1 -14), or any applicable State arbitration statute,
including, but not limited to, the Texas General Arbitration
Act, provided that in the event that the OWNER is
subjected to an arbitration proceeding notwithstanding this
provision, CONSULTANT consents to be joined in the
arbitration proceeding if CONSULTANT'S presence is
required or requested by the OWNER for complete relief to
be recorded in the arbitration proceeding.
6.12 Notices
A. (Modified) 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. Additionally, notices
may be given via facsimile or by electronic mail if such notice
is also given personally, or by registered or certified mail or
by a commercial courier service. All notices shall be effective
upon the date of receipt.
6.13 Survival
A. (Modified) All express representations,
indemnifications, and limitations of liability included in this
Agreement will survive its completion or termination for any
reason.
6.14 Severability
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
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 indicated, which
are applicable to both the singular and plural thereof:
1. Addenda -- Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
change the Bidding Documents.
2. Additional Services --The services to be
performed for or furnished to OWNER by
CONSULTANT in accordance with Exhibit A, Part 2 of
this Agreement.
3. Agreement—This "Standard Form of Agreement
between OWNER and CONSULTANT for Professional
Services," including those Exhibits listed in Article 8
hereof.
4. Application for Payment—The form acceptable
to CONSULTANT 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.
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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 8 of 13
by the United States Occupational Safety and Health
Administration.
6. Basic Services - -The services to be performed
for or furnished to OWNER by CONSULTANT in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid —The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
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.
9. Change Order --A document recommended by
CONSULTANT, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
the Work, or an adjustment in the Contract Price or the
Contract Times, issued on or after the Effective Date of
the Construction Agreement.
10. Construction Agreement --The written
instrument which is evidence of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract—Ile entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. Construction Cost —The cost to OWNER of
those portions of the entire Project designed or specified
by CONSULTANT. Construction Cost does not include
costs of services of CONSULTANT 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.
13. (Modified) Contract Documents -- Documents
that establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor and all
documents referenced therein, 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, insurance documents 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
professional'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.
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.
15. Contract Times --The numbers of days or the
dates stated in the Construction Agreement to:
i) achieve Final Completion, and (ii) complete the Work
so that it is ready for final payment as evidenced by
CONSULTANT's written recommendation of final
payment.
16. Contractor—An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period—Ile time after Final
Completion during which Contractor must correct, at no
cost to OWNER, any Defective Work, normally one year
after the date of Final 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.
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 CONSULTANT's recommendation of
final payment.
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 CONSULTANT to
OWNER pursuant to this Agreement.
20. Drawings --That part of the Contract Documents
prepared or approved by CONSULTANT which
graphically shows the scope, extent, and character of the
Work to be performed by Contractor. Shop Drawings
are not Drawings as so defined.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 9 of 13
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.
23. Consultants -- Individuals or entities having a
contract with CONSULTANT to famish services with
respect to this Project as CONSULTANT's independent
professional associates, consultants, subcontractors, or
vendors. The term CONSULTANT includes its
Consultants.
24. Field Order --A written order issued by
CONSULTANT which directs minor changes in the
Work but which does not involve a change in the
Contract Price or the Contract Times.
25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govem the Work to be performed or
furnished by Contractor with respect to the Project.
27. 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.
28. 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.
29. Laws and Regulations; Laws or Regulations- -
Any and all applicable laws, rules, regulations,
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts
having jurisdiction.
30. PCB's -- Polychlorinated biphenyls.
31. Petroleum -- Petroleum, including crude 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 crude oils.
32. 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.
33. Record Drawings --The Drawings as issued for
construction on which the CONSULTANT, upon
completion of the Work, has shown changes due to
Addenda or Change Orders and other information which
CONSULTANT considers significant based on record
documents furnished by Contractor to CONSULTANT
and which were annotated by Contractor to show
changes made during construction.
34. Reimbursable Expenses- -The expenses incurred
directly by CONSULTANT in connection with the
performing or famishing of Basic and Additional
Services for the Project for which OWNER shall pay
CONSULTANT as indicated in Exhibit C.
35. Resident Project Representative --The
authorized representative of CONSULTANT, if any,
assigned to assist CONSULTANT at the Site during the
Construction Phase. The Resident Project Representative
will be CONSULTANT's agent or employee and under
CONSULTANT's supervision. As used herein, the term
Resident Project Representative includes any assistants
of Resident Project Representative agreed to by
OWNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
36. 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.
37. 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
CONSULTANT to illustrate some portion of the Work.
38. 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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 10 of 13
easements for access thereto, and such other lands
fumished by OWNER which are designated for use of
Contractor.
39. 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.
40. Substantial Completion- -The time at which the
Work (or a specified part thereof) has progressed to the
point where, in the opinion of CONSULTANT, 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.
41. Supplementary Conditions —That part of the
Contract Documents which amends or supplements the
General Conditions.
42. (Modified) Total Project Costs --The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of CONSULTANT or other design
professionals and consultants, cost of land, rights -of -way,
compensation for damages to properties, OWNER's
costs for legal, accounting, insurance counseling or
auditing services, interest and financing charges incurred
in connection with the Project, and the cost of other
services to be provided by others to OWNER pursuant to
Exhibit B of this Agreement.
43. 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 constru=ction
and furnishing, installing, and incorporating all materials
and all equipment into such construction, all as required
by the Contract Documents.
44. 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 CONSULTANT, 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.
45. 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 - architectural or non - technical rather than strictly
construction - related aspects of the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
8.01 Exhibits Included
A. Exhibit A, "CONSULTANT's Services," consisting
of three (3) pages.
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C. "Payments to CONSULTANT for
Services and Reimbursable Expenses," consisting of two (2)
pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative," is not used.
E. Exhibit E, "Notice of Acceptability of Work," is not
used.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
1. Exhibit I, "Allocation of Risks," is not used
J. Exhibit J. "Special Provisions" is not used
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 1 to 13
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 11 of 13
CONSULTANT and supersedes all prior written or oral
understandings. This Agreement may only be amended,
supplemented, modified, or canceled by a duly executed
written instrument. This Agreement along with the exhibits
shall be read and construed as the same Agreement.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 12 of 13
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN
ROBERT D. LEIPER
Title: City Manager
Date Signed:
Address for giving notices:
P.O. BOX 424
BAYTOWN, TEXAS 77422 -0424
Designated Representative (paragraph 6.02.A):
JOSE A. PASTRANA, P.E.
Title: Director of Engineering
Phone Number: (281) 420 -7154
Facsimile Number: (281) 420 -6586
E -Mail Address: jose.pastrana@baytown.org
CONSULTANT: PIERCE GOODWIN
ALEXANDER & LINVILLE, INC.
PJed Name:
Title: l W4 fALA
Date Signed: 2
Address for giving notices:
3131 BRIAR PARK, STE. 200
HOUSTON, TEXAS 77042
Designated Representative (paragraph 6.02.A):
Title:
Phone Number:
Facsimile Number:
E -Mail Address:
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 13 of 13
This is EXHIBIT A, consisting of 3 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
CONSULTANT's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
CONSULTANT shall provide Basic and Additional Services as set forth below.
PART 1-- BASIC SERVICES (Modified)
A1.01 Preliminary Design Phase
A. CONSULTANT shall:
Consult with OWNER to define and clarify OWNER's requirements for the Project and available data.
2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in
Exhibit B which are not part of CONSULTANT's Basic Services, and assist OWNER in obtaining
such data and services.
3. Consult with OWNER "s consultants to coordinate the scope of the Project
4. (Modified) Identify, consult with, analyze requirements of, and obtain the approval of governmental
authorities having jurisdiction to approve the portions of the Project designed or specified by
CONSULTANT, including but not limited to, requirement of the Texas Accessibility Standards of the
Architectural Barriers Act.
5. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's
requirements for the Project.
6. (Modified) Attend meetings with OWNER and OWNER'S consultants, designated boards,
commissions, and/or city council to receive input into OWNER'S requirements for the Project and
evaluate potential solutions available to OWNER.
7. Perform or provide the following additional preliminary design services:
a. Data Collection:
1) Assemble statistics and preliminary planning facts by interviewing OWNER'S key staff.
Interviewing sessions will be conducted in both individual and group sessions. Data collected
by interview will be summarized and presented in the Report.
2) Gather existing documentation of existing facilities for comparison purposes.
3) Identify use of each existing building by interviewing OWNER'S key staff.
4) Conduct meetings with the OWNER'S staff and tour existing buildings.
5) Make site visits to similar police facilities.
b. Standards Development:
1) Inventory existing office and work station sizes.
2) Gather space standards from similar municipal entities for comparison purposes.
3) Recommend planning standards for OWNER'S offices and work stations.
Page 1 of 3 pages
Exhibit A — Consultant's Services)
c. Programming/Needs Assessment:
1) Identify projected division space needs for 5, 10, and 20 years in the future by interviewingkeystaffoftheOWNER.
2) Benchmark planned spaces against other municipal facilities.
3) Provide stacking and blocking studies.
d. Concept Development Phase:
1) Gather existing concepts and ideas by interviewing key staff of the OWNER.
2) Master plan the proposed site.
3) Develop concept design of building and site improvements.
4) Conduct review meetings with OWNER.
5) Make recommendation for construction delivery method.
e. Preliminary Design:
1) Develop, study and provide alternate floor plans, elevation and site design for OWNER'S
approval.
2) Evaluate design options with operational requirements.
3) Develop room data sheets.
4) Develop preliminary project schedules.
5) Develop preliminary project budgets.
6) Conduct Council workshops to review design.
7) Assist in preparation of materials for a potential bond election.
f. Presentation:
1) Prepare a presentation to OWNER'S city council of proposed project scope, budget and
schedule, which shall be presented to OWNER'S city council.
2) After receiving input from OWNER'S city council adjust the concepts and cost estimates to
accommodate OWNER'S direction.
8. (Modified) Prepare a preliminary report (the "Report") which will, as appropriate, contain schematic
layouts illustrating the scale and relationship of the components, sketches, schedule of events,
preliminary site plans, building plans, sections and elevations, and conceptual design criteria with
appropriate exhibits to indicate the agreed -to requirements, considerations involved, and those
alternate solutions available to OWNER which CONSULTANT recommends. Preliminary selections
of major building systems and construction materials shall be noted on the drawings or otherwise
described in writing in the Report. This Report will be accompanied by CONSULTANT's opinion of
Total Project Costs for each solution which is so recommended for the Project with each component
separately itemized, including the following, which will be separately itemized: opinion of probable
Construction Cost, allowances for contingencies and for the estimated total costs of design,
professional, and related services provided by CONSULTANT and, on the basis of information
furnished by OWNER, allowances for other items and services included within the definition of Total
Project Costs.
9. Furnish three (3) review copies of the Report to OWNER within one hundred five (105) days of
authorization to begin services and review it with OWNER.
10. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish
five (5) final copies of the revised Report and one copy in pdf format on compact disk to the OWNER
within ten (10) days after completion of reviewing it with OWNER.
B. (Modified) CONSULTANT's services under the Preliminary Design Phase will be considered complete on
the date when the final copies of the revised Report have been delivered to and accepted by OWNER.
A 1.02 Final Design Phase
Not included)
Page 2 of 3 pages
Exhibit A — Consultant's Services)
A1.03 Bidding or Negotiating Phase
Not included)
A1.04 Construction Phase
Not included)
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
A. Not included
Page 3 of 3 pages
Exhibit A — ConsuItant's Services)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.41 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide CONSULTANT with all 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 famish 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 CONSULTANT to include in the Bidding Documents, when applicable.
B. Furnish to CONSULTANT any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in
which the existing data and documentation will be provided shall be at the sole discretion of the OWNER.
C. (Modified) Following CONSULTANT's assessment of initially available Project information and data and
upon CONSULTANT's written request, furnish or otherwise make available such additional available Project related
information and data as is reasonably required to enable CONSULTANT to complete its Basic and Additional Services.
1. (Not Used).
2. (Not Used).
3. (Not Used).
4. (Not Used).
5. (Not Used).
6. (Not Used).
D. (Not Used).
E. (Modified) Authorize CONSULTANT to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public property as
required for CONSULTANT to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by CONSULTANT (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.
Page 1 of 2 pages
Exhibit B • OWNER's Responsibilities)
H. (Not Used).
I. (Not Used).
I Advise CONSULTANT 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 architectural, and constructability review.
Page 2 of 2 pages
Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Payments to CONSULTANT 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
CONSULTANT
C4.01 For Basic Services Having A Determined
Scope -Cost not to Exceed Method of
Payment
A. OWNER shall pay CONSULTANT for
Basic Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $38,000.00, based upon the rate
schedule, which is attached as Appendix I of
Exhibit C and incorporated herein for all intents
and purposes. This amount does not include
those CONSULTANT'S consultant's charges as
provided below in this article 4, Subparagraph
C4.05, if any, and will be distributed at the
completion of each phase in the following
amount:
1. Preliminary Design .....................$ 38,000.00
3.2. (Modified) CONSULTANT may with
the consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by
the OWNER.
3. The cost not to exceed includes
compensation for CONSULTANT's services
and services of its Consultants (with the
exception of those outlined in paragraph C4.05),
if any. Appropriate amounts have been
incorporated in the cost not to exceed to account
for labor, overhead and profit.
Initial:
OWNER
CONSULTANT
4. Not Used.
5. The portion of the amount billed for
CONSULTANT's services will be based upon
total services actually completed during the
billing period, which shall be a calendar month.
Invoices shall be tendered no more often than
once a month for all of the services performed
during the applicable month.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs rimes a Factor
Method of Payment
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay CONSULTANT for
Additional Services as follows:
1. General. For services of
CONSULTANT's employees engaged directly
on the Project pursuant to paragraph Part 1 of
Exhibit A of the Agreement, except for services
as a consultant, an amount based upon the actual
hours worked and the rate schedule, which is
attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes
plus Reimbursable Expenses. Additional
Services shall not exceed $0.00 without the prior
written consent of the Owner.
2. (Not Used).
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay CONSULTANT for
Reimbursable Expenses at the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
Page 1 of 2 pages
Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
shall be liable for any reimbursable expenses, the Expenses and CONSULTANT's Consultant'sCONSULTANTmustobtainpriorwrittenapprovalcharges, if any.
of the OWNER of any expense that exceeds
1000.00 for which the CONSULTANT seeks
reimbursement. Reimbursable Expenses shall not
exceed a total of $4,000.00.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items
in addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to CONSULTANT for
Reimbursable Expenses will be the Project- related
internal expenses actually incurred or allocated by
CONSULTANT, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of J. 10. Travel, meals,
mileage, rental cars, and like expenses are not subject
to the 1. 10 Factor.
D. Not Used.
E. (Added) The OWNER must approve all
travel expenses before the same are incurred. If such
approval is not obtained, the OWNER shall not be
liable for such travel expenses.
C4.05 For CONSULTANT's Consultant's Charges
A. Not used)
C4.06 Direct Labor Costs
A. Not Used).
B. Not Used).
4.07 Rate Schedule
A. (Not used)
B. Not used).
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for CONSULTANT's services which
are identified in paragraphs C4.01 and C4.03, will be
based on the Rate Schedule for the cumulative hours
charged to the Project during the billing period by all
of CONSULTANT's employees, plus Reimbursable
Page 2 of 2 pages
Exhibit C - All Other Services/Charges -- Cost not to Exceed Method of Payment)
APPENDIX 1 OF EXHIBIT C
RATE SCHEDULE
Employee Classification Maximum
Hour Rate
Director 205.00
Princi al 200.00
Project Manager 111 195.00
Project Manager II 190.00
Project Manager I 185.00
Senior Project Architect IV, Designer IV, Engineer IV 185.00
Senior Project Architect III, Designer 111, Engineer II1 180.00
Senior Project Architect II, Designer 11, Engineer II 175.00
Senior Project Architect I, Designer 1 Engineer I 165.00
Architect IV, Designer IV, Engineer IV 150.00
Architect III Designer III, Engineer III 135.00
Architect II Designer II Engineer 11 140.00
Architect I, Designer 1 Engineer I 90.00
BIM Manager III 150.00
BIM Manager I1 130.00
BIM Manager I 110.00
EIT III 125.00
EIT 11 115.00
EIT I 105.00
Construction Administration 170.00
Construction Inspector 150.00
Project Administrator III 130.00
Project Administrator II 110.00
Project Administrator 1 90.00
Assistant 80.00
Page 1 of 1 pages
Appendix 1 to Exhibit C Rate Schedule)
APPENDIX 2 OF EXHIBIT C
REIMBURSEMENT OF COSTS
External Reproduction and Deliveries: Cost plus 10%
Internal Expenses: Cost
Mileage: IRS Rate
Travel: Cost (subject to C4.04.E)
Page I of 1 pages
Appendix 2 to Exhibit C Reimbursement of Costs)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
Insurance
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the term of this Agreement, the CONSULTANT at its own expense shall purchase, maintain and keep
in force and effect insurance against claims for injuries to or death of persons or damages to property which may
arise out of or result from the CONSULTANrs operations and/or performance of the work under this Agreement,
whether such operations and/or performance be by the CONSULTANT, its agents, representatives, volunteers,
employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose
acts any of them may be liable.
The CONSULTANT's insurance coverage shall be primary insurance with respect to the OWNER, its officers,
agents and employees. Any insurance or self - insurance maintained by the OWNER, its officials, agents and
employees shall be considered in excess of the CONSULTANT's insurance and shall not contribute to it. Further,
the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability
policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for
subcontractors shall be subject to all of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Commercial General Liability (CGL)
General Aggregate: $2,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $1,000,000
a. Coverage shall beat least as broad as ISO CG 00 O1 04 13
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors & Omissions (E &O)
Limit: $1,000,000
Page 1 of 2 Pages
Exhibit G - Insurance)
a. For all architects, and/or design companies.
b. Claims -made form is acceptable.
c. Coverage will be in force for three (3) years after project is completed.
Upon execution of this contract, CONSULTANT shall file with the OWNER valid Certificates of Insurance and
endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail, return receipt requested.
The CONSULTANT shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of B+ :VII or better.
b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted.
C. Liability policies will be on occurrence form. E & 0 can be on claims -made form.
d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial
general liability and business automobile policies.
e. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates
of insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of
insurance coverage shall be provided to OWNER's representative prior to execution of this agreement.
f. Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to OWNER's representative.
Page 2 of 2 pages
Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT
CONSULTANT AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS
OWNER") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO
ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO
THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN
ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT
UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE
CONSULTANT EXERCISES CONTROL (COLLECTIVELY
CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH CONSULTANT AND OWNER,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND
PROTECT OWNER FROM THE CONSEQUENCES OF
CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT,
JOINT OR SOLE NEGLIGENCE AS WELL AS THE
CONSULTANT'S PARTIES' INTENTIONAL TORTS,
INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES
TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT
APPLY, HOWEVER, TO LIABILITY ARISING FROM THE
PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF
PERSONS THAT IS CAUSED BY OR RESULTS FROM THE
Page 1 of 2 Pages
Exhibit K - Indemnification)
NEGLIGENCE OF ANY PERSON OTHER THAN THE
CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM
WHICH THE OWNER IS INDEMNIFIED, CONSULTANT
FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE
TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE
SHALL SURVIVE THE TERMINATION AND /OR EXPIRATION
OF THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have
granted by the terms of this Contract or any other contract or agreement, any
charter, or applicable state law. Nothing herein shall be construed so as to limit or
waive OWNER'S sovereign immunity. CONSULTANT assumes full responsibility
for its work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and/or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with CONSULTANT's work to be performed
hereunder. This release shall apply with respect to CONSULTANT's work
regardless of whether said claims, demands, and causes of action are covered in
whole or in part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and /or expiration of this Agreement.
Page 2 of 2 Pages
Exhibit K - Indemnification)