Ordinance No. 13,952ORDINANCE NO. 13,952
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH ELEMENT
ARCHITECTS, LLC, FOR THE CITIZEN'S BANK BUILDING PROJECT;
AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT
TO EXCEED ONE HUNDRED FORTY-FIVE THOUSAND SEVENTY-FIVE AND
N0/100 DOLLARS ($145,075.00); MAKING OTHER PROVISIONS RELATED
THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
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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 and
directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with
Element Architects, LLC, for the Citizen's Bank Building Project. A copy of 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 Element
Architects, LLC, in an amount not to exceed ONE HUNDRED FORTY-FIVE THOUSAND SEVENTY-
FIVE AND NO/100 DOLLARS ($145,075.00) for professional 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 N0/100 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 affirmative
Baytown this the 19a' day of November, 2018.
aS�
TT ST:-
•-1
LETICIA BRYSCH, City Cl
APPROVED AS TO FORMS
4AACIOgRRAMIREZ, SR.,i Attorney
after its passage by the
the City Council of the City of
Mayor
\\cobfs0l\legalXKaren\Files\City Council\Ordinances\2018Wovember 19\ElementAn hitectsProfessionalServicesAgreement4CitizensBankBuilding.doc
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the 19th day of November, 2018 ("Effective Date"),
Between
The City of Baytown ("OWNER")
and
Element Architects, LLC. ("CONSULTANT").
OWNER intends to engage CONSULTANT to perform architectural and engineering services for the renovation of
the Citizen Bank Building located at 313 W Texas Ave, Baytown, TX 77520 (the "Project") for and on behalf of the
OWNER.
The Project consists of the renovation of an historic building, keeping the existing fagade and approximately 50' of
structure behind it long W. Texas Avenue; repairing portions of the fagade that are failing; providing a new roof;
providing a 6,000 SF to 7,000 SF multi-purpose room, restrooms, small kitchen, and elevator access to the
mezzanine; and suppling surface parking for the building.
The Project scope shall include the following:
• Architectural
o Conceptual Design Site plan and floor plan sketches.
o Schematic Design Site plan, floor plan, elevations, code research.
o Design development — Further development of schematic design and consultants begin to
provide input into the design.
o Construction documents Permit drawings for the purpose of sharing with contractors for
pricing and obtaining a building permit.
o Bid Tab — CONSULTANT will prepare a bid tab comparing estimates from general contractors
o Meetings with the OWNER and the General Contractor are included. CONSULTANT shall
address contractor questions, answer requests for information (RFIs) and review submittals
and shop drawings for compliance with the design intent.
• Structural Permit drawings and City Comments are included. Details to secure the fagade are included.
On site Construction Phase Services are excluded. Submittal reviews are included.
• Mechanical, Electrical, Plumbing Permit drawings and OWNER Comments are included.
• Civil Engineering — Site grading, accessible paths, civil design, and permit documents are included.
• Survey showing Metes and Bounds, Topography, Utilities and Existing Structures
• An Asbestos Survey is included and if asbestos is detected a proposal for its abatement will be obtained.
The abatement of asbestos containing materials is not included.
• A Lead Based Paint Survey is included. If lead based paint is detected a proposal for its abatement will be
obtained.
• TDLR ADA Registration, Plan Review and Inspection Services are included.
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 13
TABLE OF CONTENTS Page
ARTICLE 1 - SERVICES OF CONSULTANT................................................................................................................. 3
1.01 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............................................................................................................................................. 11
8.02 Total Agreement.............................................................................................................................................. 12
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 2 of 13
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. (Deleted)
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. (Deleted)
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Deleted) .
B. (Modified) If CONSULTANT's services are
suspended 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 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 incurred 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 thirty (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 thirty (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 Government Code after the 30th day.
CONSULTANT may after giving seven (7) days' written
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 3 of 13
notice to OWNER suspend services under this 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. (Deleted)
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. 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 thirty (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 (Deleted)
5.03 Opinions of Total Project Costs
A. (Deleted)
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 6.01.E.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 4 of 13
C. CONSULTANT shall perform or fiimish
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 retain 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
wan -ant 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 warrant 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.
I (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 (Deleted)
6.04 Use of Documents
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 5 of 13
A. (Modified) Upon execution of this Agreement, the
CONSULTANT grants to the OWNER an ownership interest
in the Instruments of Service. The CONSULTANT shall
obtain similar interests from its consultants consistent with this
Agreement. Within seven (7) 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.
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 limited 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 sixty (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 thirty (30)
days' written notice in the event of failure by the
other party to perform in accordance with the terms
hereof through no fault of the terminating party; or
b. By CONSULTANT upon seven (7) days'
written notice if CONSULTANT is being requested
by OWNER to furnish or perform services contrary
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 6 of 13
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 (7) days of receipt of such
notice, to correct its failure to perform and proceeds
diligently to cure such failure within no more than
thirty (30) days of receipt thereof; provided,
however, that if and to the extent such substantial
failure cannot be reasonably cured within such thirty
(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 sixty (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 Hams 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 legal 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
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.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 7 of 13
F. If CONSULTANT's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
CONSULTANT's terminating this Agreement for cause on
thirty (3 0) days' notice.
6.11 Allocation of Risks
A. (Modified) Indemnification. See Exhibit K
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. 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.
6.16 Headings
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
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.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 8 of 13
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—The 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—The 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.
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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 9 of 13
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 furnish 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 govern 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 furnishing 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 easements
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 10 of 13
for access thereto, and such other lands furnished 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 construction
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 six (6) 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.
I. 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
RICHARD L. DAVIS
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: ELEMENT APjpMTECTS, LLC
Printed Name: Michael Graham
Title: Member/ Principal
Date Signed: 11/15/18
Address for giving notices:
1250 WOOD BRANCH PARK DRIVE, SUITE 480
HOUSTON, TX 77079
Designated Representative (paragraph 6.02.A):
MICHAEL GRAHAM, AIA, LEED AP
Title: Member/ Principal
Phone Number: (713) 874-0775
Facsimile Number: none
E -Mail Address: graham@elementarchitects.com
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 13 of 13
This is EXHIBIT A, consisting of 6 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
Initial:
OWNER
CONSULTANT MBG
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 Design Phases
A. For the preliminary design phase, CONSULTANT shall:
1. 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. (Modified) Prepare a preliminary report (30% Completion) (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.
Page 1 of 6 pages
(Exhibit A — Consultant's Services)
8. Furnish two (2) review copies and one electronic copy in pdf format of the Report to OWNER within
twenty (21) days of authorization to begin services and review it with OWNER
B. For the Design Phase, CONSULTANT shall:
(Modified) On the basis of the acceptance of the Report as well as upon the direction, and authorization of
OWNER, prepare final Drawings indicating the scope, relationships, forms size and appearance of the
Project by means of plans, sections and elevations, construction details and specifications together with the
extent and character of the Work to be performed and furnished by Contractor, including the quality levels
for major materials and Project systems. Specifications will be prepared, where appropriate, in
conformance with the 16 -division format of the Construction Specifications Institute or other format
agreed to in writing by OWNER and CONSULTANT.
2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for
permits from or approvals of governmental authorities having jurisdiction to review or approve the final
design of the Project and assist OWNER in consultations with appropriate authorities.
3. Advise OWNER of any adjustments to the Project schedule and the opinion of probable Construction Cost
and any adjustments to Total Project Costs known to CONSULTANT, itemized as provided in A1.01.A.7.
2. Perform or provide the following additional Design Phase tasks or deliverables:
a. CONSULTANT will bring on design consultants such as mechanical, electrical and plumbing, and
other required consultants, including structural and civil engineers to complete the balance of the
work.
b. CONSULTANT will perform or cause to be performed a structural analysis of the building by a
structural engineer.
c. CONSULTANT will prepare construction documents required for permitting and construction.
The completed construction documents will be submitted to governmental agencies for purposes of
obtaining all appropriate permits.
d. CONSULTANT'S services shall include all architectural, structural, engineer, and MEP design
services necessary for the Project.
3. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any
time the CONSULTANT's estimate of the probable Construction Cost or Total Project Costs exceed the
OWNER's budget.
4. Update the opinion of probable Construction Cost and project schedule at 50%, 90% and 100% design
intervals.
5. Prepare and furnish two (2) copies of the Contract Documents, which shall include Drawings and
Specifications that establish in detail the quality levels of materials and project systems required for
construction in pdf format on compact disks, for review and approval by OWNER, its legal counsel, and
other advisors, as appropriate, and assist OWNER in the preparation of other related documents. Such
documents shall be submitted at the following intervals:
Submittal
Due Date
number of calendar days from Notice to Proceed)
60%
35 days
90%
56 days
100%
70 days
6. Revise the Contract Documents in response to OWNER's and other parties' comments, as appropriate,
and furnish two (2) final copies of the revised documents and a copy of the same in pdf format on
compact disks to the OWNER within ten (10) days after completion of reviewing it with OWNER
Page 2 of 6 pages
(Exhibit A — Consultant's Services)
7. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation,
including plans and specifications, were originally prepared to reflect these items. as reasonably requested
by OWNER, so long as this/these request(s) is made prior to the preparation of the final bid documents.
A1.02 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction
Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed,
CONSULTANT shall:
1. Assist OWNER in advertising for and obtaining bids for the Work.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and
entities proposed by Contractor for those portions of the Work as to which such acceptability is required
by the Bidding Documents.
4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables:
a. Recommend award to the OWNER.
b. Attend the Council meeting for award of the contract for the Project.
5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts
for the Work.
6. (Added) Assist in connection with Bid protests, rebidding, or re -negotiating contracts for construction,
materials, equipment, or services.
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A1.03 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, CONSULTANT shall:
General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of CONSULTANT as assigned in said General Conditions shall not be
modified, except as CONSULTANT may otherwise agree in writing. All of OWNER's instructions
to Contractor will be issued through CONSULTANT, who shall have authority to act on behalf of
OWNER in dealings with Contractor to the extent provided in this Agreement and said General
Conditions except as otherwise provided in writing.
2. (Modified) Construction and Materials Testing. Provide construction material testing, including
concrete inspections, concrete test cylinders, reinforcing steel inspection and provide an engineering
and report review as necessary for the Project. CONSULTANT shall provide two sets of blue prints
(civils and structurals) and one copy of the specification book to CONSULTANT's construction and
material testing subconsultant. Cost run through bid form per City of Baytown, cost covered by GC
3. Pre -Construction Conference. Coordinate and prepare the pre -construction conference agenda and
other required documentation. Participate in a Pre -Construction Conference prior to commencement
of Work at the Site. Prepare and distribute meeting minutes.
Page 3 of 6 pages
(Exhibit A Consultant's Services)
4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating
the Work which in CONSULTANT's judgment are necessary to enable Contractor to proceed
5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests, and as CONSULTANT and/or OWNER
deems necessary, in order to observe as an experienced and qualified design professional the
progress and quality of the Work. Such visits and observations by CONSULTANT, and the
Resident Project Representative, if any, are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in
progress beyond the responsibilities specifically assigned to CONSULTANT in this Agreement
and the Contract Documents, but rather are to be limited to spot checking, selective sampling,
and similar methods of general observation of the Work based on CONSULTANT's exercise of
professional judgment as assisted by the Resident Project Representative, if any. Based on
information obtained during such visits and such observations, CONSULTANT will determine if
Contractor's work is proceeding in accordance with the Contract Documents, and
CONSULTANT shall keep OWNER informed of the progress of the Work.
b. (Modified) The purpose of CONSULTANT's visits to, and representation by the Resident
Project Representative, if any, at the Site, will be to enable CONSULTANT to better carry out
the duties and responsibilities assigned to and undertaken by CONSULTANT during the
Construction Phase, and, in addition, by the exercise of CONSULTANT's efforts as an
experienced and qualified design professional, to provide for OWNER a greater degree of
confidence that the completed Work will substantially conform to the Contract Documents and
that the integrity of the design concept of the completed Project as a functioning whole as
indicated in the Contract Documents has been implemented and preserved by Contractor.
CONSULTANT shall not, during such visits or as a result of such observations of Contractor's
work in progress, supervise, direct, or have control over Contractor's work, nor shall
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 Contractor's work, or for any failure of Contractor to comply with Laws and
Regulations applicable to Contractor's furnishing and performing the Work. Accordingly,
CONSULTANT neither guarantees the performance of any Contractor nor assumes
responsibility for any Contractor's failure to furnish and perform its work in accordance with the
Contract Documents.
6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, CONSULTANT believes that
such work will not produce a completed Project that substantially conforms to the Contract
Documents or that it will prejudice the integrity of the design concept of the completed Project as a
functioning whole as indicated in the Contract Documents.
7. Clarifications and Interpretations; Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from the
Contract Documents. CONSULTANT may issue Field Orders authorizing minor variations from the
requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only for
Page 4 of 6 pages
(Exhibit A— Consultant's Services)
conformance with the information given in the Contract Documents and compatibility with the design
concept of the completed Project as a functioning whole as indicated in the Contract Documents
Such reviews and approvals or other action will not extend to means, methods, techniques, sequences
or procedures of construction or to safety precautions and programs incident thereto.
CONSULTANT has an obligation to meet any Contractor's submittal schedule that has earlier been
acceptable to CONSULTANT.
10. Substitutes and "or -equal. " Evaluate and determine the acceptability of substitute or "or -equal"
materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of
this Exhibit A.
11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. CONSULTANT's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. CONSULTANT shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OWNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and progress
of Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show
partiality to OWNER or Contractor.
13. Applications for Payment. Based on CONSULTANT's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute CONSULTANT's
representation to OWNER, based on such observations and review, that, to the best of
CONSULTANT's knowledge, information and belief, Contractor's work has progressed to the
point indicated, the quality of such work is substantially in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract
Documents and to any other qualifications stated in the recommendation), and the conditions
precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as
it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price
work, CONSULTANT's recommendations of payment will include final determinations of
quantities and classifications of Contractor's work (subject to any subsequent adjustments
allowed by the Contract Documents). The responsibilities of CONSULTANT contained in
paragraph A1.03.A.5.a are expressly subject to the limitations set forth in paragraph A1.03.A.5.b
and other express or general limitations in this Agreement and elsewhere.
b. By recommending any payment, CONSULTANT shall not thereby be deemed to have
represented that observations made by CONSULTANT to check the quality or quantity of
Contractor's work as it is performed and furnished have been exhaustive, extended to every
aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the
responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract
Documents. Neither CONSULTANT's review of Contractor's work for the purposes of
recommending payments nor CONSULTANT's recommendation of any payment including final
payment will impose on CONSULTANT responsibility to supervise, direct, or control
Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of
construction or safety precautions or programs incident thereto, or Contractor's compliance with
Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will
Page 5 of 6 pages
(Exhibit A — Consultant's Services)
also not impose responsibility on CONSULTANT to make any examination to ascertain how or
for what purposes Contractor has used the moneys paid on account of the Contract Price, or to
determine that title to any portion of the work in progress, materials, or equipment has passed to
OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there
may not be other matters at issue between OWNER and Contractor that might affect the amount
that should be paid.
14. Contractors Completion Documents.
a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as
prepared by the Contractor in accordance with the Contract Documents. CONSULTANT will
compile this information as provided by Contractor, and deliver three (3) copies of the same to
OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and
required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings,
Samples and other data approved as provided under paragraph A1.03.A.9, and the annotated record
documents which are to be assembled by Contractor in accordance with the Contract Documents to
obtain final payment. The extent of such CONSULTANT's review will be limited as provided in
paragraph A1.03.A.9.
c. CONSULTANT shall transmit these documents to OWNER within thirty (30) days of receipt of
documents from Contractor.
d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved
by the OWNER and on mylar showing appropriate record information based on Project annotated
record documents received from Contractor.
15. Substantial Completion. Promptly after notice from Contractor that Contractor considers the entire Work
ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if
the Work is Substantially Complete. If after considering any objections of OWNER, CONSULTANT
considers the Work Substantially Complete, CONSULTANT shall deliver a certificate of Substantial
Completion to OWNER and Contractor.
16. (Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall also
provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work") that to
the best of CONSULTANT's knowledge, information and belief and upon the exercise of
CONSULTANT'S due diligence, the Work is acceptable and is in compliance with the Contract
Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors.
C. Limitation of Responsibilities. CONSULTANT shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform
or furnish the Work in accordance with the Contract Documents.
PART 2 — ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
A. Not included
Page 6 of 6 pages
(Exhibit A — Consultant'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
CONSULTANTMBG
OWNER's Responsibilities
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide 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 furnish copies of all design and construction standards which OWNER
will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard forms,
conditions, and related documents for 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. (Deleted)
2. (Deleted)
3. (Deleted)
4. (Deleted)
5. (Deleted)
6. (Deleted)
D. (Deleted)
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. (Deleted)
I. (Deleted)
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 $40,000.00, based upon the rate
schedule, which is attached as Appendix 1 of
Exhibit C and incorporated herein for all intents
and purposes. This amount excludes those
CONSULTANT'S consultant's charges.
3.2. (Deleted)
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.
4. (Deleted)
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.
Initial:
OWNER
CONSULTANTMBG
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. (Deleted)
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. (Deleted)
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
shall be liable for any reimbursable expenses, the
CONSULTANT must obtain prior written approval
of the OWNER of any expense that exceeds $1000.00
for which the CONSULTANT seeks reimbursement.
Reimbursable Expenses shall not exceed a total of
$6,075.00.
TDLR Registration, Plan Review
and Inspection (ADA review).............$1,075
Permit Expeditor aka Permit Runner ...... $2,000
Page 1 of 2 pages
(Exhibit C - Basic Services With Determined Scope — Cost not to exceed Method)
Prints for review sets and permit sets ..... $2,500
Mileage for included site visits .................$500
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.
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. (Modified). Whenever compensation to
CONSULTANT herein is stated to include charges of
CONSULTANT's Consultants, those charges shall be
the amounts billed by CONSULTANT's Consultants
to ENGINEER times a Factor of 1.0. The consultant
charges shall not exceed the following amounts
specified for each of the following services. The
charges include the factor, and are as follows:
Pinnacle Structural Engineers
..............$53,000
ASEI MEP Engineers...........................$14,000
WGA Civil Engineers ..........................$23,000
Metes and Bounds Survey
and Topographic Survey....................$6,600
Asbestos Survey and
Lead Based Paint Survey...................$2,400
C4.06 Direct Labor Costs
A. (Deleted)
B. (Deleted)
4.07 Rate Schedule
A. (Deleted)
B. (Deleted)
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
Expenses and CONSULTANT's Consultant's
charges, if any.
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
Hourly Rate
Principal
$185.00
Architect
$150.00
Draftsperson
$100.00
Administrator
$ 65.00
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 1 of 1 pages
(Appendix 2 to Exhibit C Reimbursement of Costs)
EXHIBIT E, consisting of 2 pages, referred to in and part of
the Agreement between OWNER and CONSULTANT for
Professional Services dated
NOTICE OF ACCEPTABILITY OF WORK
PROJECT:
OWNER:
OWNER's Construction Contract Identification:
EFFECTIVE DATE OF THE CONSTRUCTION AGREEMENT:
CONSTRUCTION CONTRACT DATE:
CONSULTANT:
To: OWNER
And To:
CONTRACTOR
Initial:
OWNER
CONSULTANT MBG
The undersigned hereby gives notice to the above OWNER and CONTRACTOR that the completed Work
furnished and performed by CONTRACTOR under the above Contract is acceptable, expressly subject to the
provisions of the related Contract Documents and the terms and conditions set forth on the reverse side hereof.
By:____
Title:
Dated: ,
Page 1 of 2 pages
(Exhibit E Notice of Acceptability of Work)
(Reverse side of Notice)
CONDITIONS OF NOTICE OF ACCEPTABILITY OF WORK
The Notice of Acceptability of Work ("Notice") on the front side of this sheet is expressly made subject to the
following terms and conditions to which all persons who receive said Notice and rely thereon agree:
1. Said Notice is given with the skill and care ordinarily used by members of the engineering profession practicing
under similar conditions at the same time and in the same locality.
2. Said Notice reflects and is an expression of the professional judgment of CONSULTANT.
3. Said Notice is given as to the best of CONSULTANT's knowledge, information, and belief as of the date
hereof.
4. (Modified) Said Notice is based entirely on and expressly limited by the scope of services CONSULTANT has
been employed by OWNER to perform or furnish during construction of the Project (including observation of
the CONTRACTOR'S work) under CONSULTANT's Agreement with OWNER and applies to facts that are
within CONSULTANT's knowledge or could or should have been ascertained by CONSULTANT as a result of
carrying out the responsibilities specifically assigned to CONSULTANT under CONSULTANT's agreement
with OWNER.
5. (Modified) Said Notice is not a guarantee or warranty of CONTRACTOR'S performance under the Construction
Contract nor an assumption of responsibility for any failure of the Contractor to furnish and perform the work
thereunder in accordance with the Contract documents, unless CONSULTANT knew or should have known of
such failure and failed to notify the Owner of such failure and take appropriate action so that the same were
corrected and brought into compliance with the Contract Documents.
Page 2 of 2 pages
(Exhibit E — Notice of Acceptability of Work)
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
MBG
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 CONSULTANT's 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 be broad form CGL
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
c. Waiver of Subrogation required
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
b. Waiver of Subrogation required
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Page 1 of 2 Pages
(Exhibit G - Insurance)
Errors & Omissions (E&O)
Limit: $1,000,000
a. For all architects, engineers, 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 A -: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 & O 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 MBG
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 HIND, 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 FRONT.
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 TERNIINATION 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)