Ordinance No. 14,224ORDINANCE NO. 14,224
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING THE PROFESSIONAL SERVICES AGREEMENT WITH
ARCHITECTS DESIGN GROUP, INC., FOR THE BAYTOWN PUBLIC SAFETY
FACILITY PROJECT; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN
IN AN AMOUNT NOT TO EXCEED THREE MILLION EIGHT HUNDRED
THIRTY-EIGHT THOUSAND ONE HUNDRED SEVEN AND 251100 DOLLARS
($3,838,107.25); 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
Architects Design Group, Inc., for the Baytown Public Safety Facility 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 Architects
Design Group, Inc., in an amount not to exceed THREE MILLION EIGHT HUNDRED THIRTY-
EIGHT THOUSAND ONE HUNDRED SEVEN AND 25/100 DOLLARS ($3,838,107.25) 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 NOI100 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 from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City of
Baytown this the 241h day of October, 2019.
BRANDON CAPETILLO, Ma r
A T:
ETICIA BRYSCH, W Clerk
APPROVED AS TO FORM:
GNACIO RAMIREZ, SR., i Attorney
11COBFSOF.Legal Karen Files'•.City Council`. Ordinances\20191October 24WrchitectsDesignGroupPSA4BaytownPublicSafetyFacilityProject.doe
Exhibit "A"
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the day of August, 2019 ("Effective Date"),
Between
The City of Baytown ("OWNER")
and
Architects Design Group, Inc. ("CONSULTANT").
OWNER intends to engage CONSULTANT to perform architectural services for the Baytown Public Safety
Facility, which shall include the following:
• Public Safety Facility (104,000 SF);
• Police Vehicle Maintenance & Storage Areas (9,800 SF);
• Fire Vehicle Maintenance & Storage Areas (13,700 SF);
• Demolition of Existing Buildings and Construction of a New Plaza; and
• Future Facilities,
(the "Project") for and on behalf of the OWNER. CONSULTANT shall perform Schematic Design Phase, Design
Phase, Construction Document Phase, Bidding Phase and Construction Phase Services necessary for the completion
of the Project.
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 Pate
ARTICLE I - 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 ......................... I...................... 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.................................................................................................... 6
6.04 Use of Documents............................................................................................................................................. 6
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
ARTICLE 7 - 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 12
ARTICLE I - 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
4.01.11, 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 12
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 CONSULNNT'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.
H. No Boycott of Israel. CONSULTANT agrees that it
will not boycott Israel during the term of this Agreement.
As used in this section, "boycott Israel" means refusing to
deal with, terminating business activities with, or otherwise
taking any action that is intended to penalize, inflict
economic harm on, or limit commercial relations specifically
with Israel, or with a person or entity doing business in
Israel or in an Israeli -controlled territory, but does not
include an action made for ordinary business purposes.
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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 4 of 12
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.
C. CONSULTANT shall perform or famish
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 famishing 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 warrant the
existence of such conditions.
1. 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,
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 5 of 12
receive information, and render decisions relative to the
Project on behalf of each respective party.
6.03(Deleted)
6.04 Use of Documents
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 firmished 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. (Deleted).
C. (Deleted).
D. (Deleted).
E. (Deleted).
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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 6 of 12
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
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 convect 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. ( Deleted).
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 6.08.E 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:
I. 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 (Deleted).
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
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"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
CONSULTANT's terminating this Agreement for cause on
thirty (30) 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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 8 of 12
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 Documems--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 Docrments--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 Ordcrs,
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.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 9 of 12
21. Effective Dale of the Construction-4greement--
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 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. ffa=ardous 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. Lmvs and Regulations; Lmvs 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. PCBs --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 fumished 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. Samp/es--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 Dtmvings--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.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 10 of 12
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
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 thirteen (13) 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.
Exhibit 1, "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 12
inclusive, together with the Exhibits identified above)
constitutes the entire agreement between OWNER and
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 I 1 of 12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYTOWN CONSULTANT: ARCIA'ECT DESIGN GROUP,
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):
Frank O. Simoneaux, Jr., P.E.
Title: Director of Public Works/Engineering
Phone Number: (281) 420-5312
Facsimile Number: (281) 420-6586
E-Mail Address: Frank.Simoneaux0bavtown.ore
Printed Name: RQdney A. McManus,LEED AP
Title: Vice Pxesident Qf Oyerations
Date Signed: August 14, 2019
Address for giving notices:
4325 N. ST. PAUL, SUITE 4250
DALLAS, TEXAS 75201
Designated Representative (paragraph 6.02.A):
Rodney McManus, LEED AP
Title: Vice President of Operations
Phone Number: (469) 458-3438
Facsimile Number: (407) 645-5525
E-Mail Address: rodneymQ).adgusa.org
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 12 of 12
This is EXHIBIT A, consisting of 13 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 I -- BASIC SERVICES (Modified)
A 1.01 Schematic Design Phase: 30% Completion
A. CONSULTANT shall:
I. 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. (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.
4. 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.
5. (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.
6. (Modified) Perform or cause to be performed the following schematic design phase services:
a. Review the program and other information furnished by the OWNER, and shall review laws,
codes, and regulations applicable to the CONSULTANT's services.
b. Prepare a preliminary evaluation of the OWNER's program, schedule, budget for the Cost of the
Work, Project site, the proposed procurement and delivery method, and other Initial Information,
each in terms of the other, to ascertain the requirements of the Project. The CONSULTANT shall
notify the OWNER of
(1) any inconsistencies discovered in the information, and
(2) other information or consulting services that may be reasonably needed for the Project.
c. Present its preliminary evaluation to the OWNER and shall discuss with the OWNER alternative
approaches to design and construction of the Project. The CONSULTANT shall reach an
understanding with the OWNER regarding the requirements of the Project.
Page I of 13 pages
( Exhibit A -Consultant's Services)
d. Based on the Project requirements agreed upon with the OWNER, prepare and present, for the
OWNER's approval, a preliminary design illustrating the scale and relationship of the Project
components.
e. Based on the OWNER's approval of the preliminary design, prepare Schematic Design Documents
for the OWNER's approval. The Schematic Design Documents shall consist of drawings and other
documents including a site plan, if appropriate, and preliminary building plans, sections and
elevations; and may include some combination of study models, perspective sketches, or digital
representations. Preliminary selections of major building systems and construction materials shall
be noted on the drawings or described in writing.
f. Consider sustainable design alternatives, such as material choices and building orientation,
together with other considerations based on program and aesthetics, in developing a design that is
consistent with the OWNER's program, schedule and budget for the Cost of the Work.
g. Consider the value of alternative materials, building systems and equipment, together with other
considerations based on program and aesthetics, in developing a design for the Project that is
consistent with the OWNER's program, schedule, and budget for the Cost of the Work.
h. If OWNER choses to move forward with a Construction Manager at Risk, work with the
Construction Manager at Risk to develop the schematic design documents.
7. Furnish three (3) review copies and one electronic copy in pdf format of the schematic design
documents, consisting of drawings and other documents illustrating the scale and relationship of
Project components along with an estimate of Probable Development cost of the Work, to OWNER
within eighty-four (84) calendar days of authorization to begin services and review it with OWNER.
8. Revise the schematic design documents in response to OWNER's and other parties' comments, as
appropriate, and furnish five (5) final copies of the revised schematic design documents and one copy
in pdf format on compact disk to the OWNER within seven (7) calendar 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 Drawings have been delivered to and accepted by OWNER.
A1.02 Design Development Phase: 60%Completion
A. On the basis of the above Schematic Design Phase Services and on the OWNER's written authorization of
any adjustments in the Project requirements and the budget for the Cost of the Work, CONSULTANT,
upon written authorization from OWNER, shall:
. 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.
2. 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.
3. (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.
4. If OWNER choses to move forward with a Construction Manager at Risk, work with the Construction
Manager at Risk to develop the design development documents.
Page 2 of 13 pages
(Exhibit A Consultant's Services)
5. 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.
6. Provide three full-size sets of design development documents, which shall illustrate and describe the
development of the approved Schematic Design Documents and shall consist of
a. drawings and other documents including plans, sections, elevations, typical construction details,
and diagrammatic layouts of building systems to fix and describe the size and character of the
Project as to architectural, structural, mechanical and electrical systems, and other appropriate
elements.
b. specifications that identify major materials and systems and their quality levels
c. an updated Estimate of Probable Development Cost of the Work,
for the OWNER's review and comment within one hundred forty (140) calendar days of authorization to
begin services and review it with OWNER.
i. Revise the documents in response to OWNER's and other parties' comments, as appropriate, and
furnish five (5) final copies of the revised documents and a copy of the same in pdf format on compact
disks to the OWNER within seven (7) days after completion of reviewing it with OWNER.
B. (Modified) CONSULTANT's services under the Design Development Phase will be considered complete
on the date when the final copies of the design development documents have been delivered to and accepted
by OWNER.
A 1.025 Construction Document Phase: (l 00% Completion)
A. After acceptance by OWNER of the deliverables in the Design Development Phase and on the OWNER's
written authorization of any adjustments in the Project requirements and the budget for the Cost of the
Work, CONSULTANT shall:
I. Prepare Final Construction Documents, illustrating and describing the further development of the
approved Design Development Documents and consisting of Drawings and Specifications setting forth in
detail the quality levels and performance criteria of materials and systems and other requirements for the
construction of the Work. 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.
2. Perform or provide the following additional final Design Phase tasks or deliverables:
a. incorporate the design requirements of governmental authorities having jurisdiction over the Project
into the Construction Documents.
b. assist the Owner in the development and preparation of (1) procurement information that
describes the time, place, and conditions of bidding, including bidding or proposal forms;
(2) the form of agreement between the Owner and Contractor; and (3) the Conditions of the
Contract for Construction (General, Supplementary and other Conditions).
c. If OWNER choses to move forward with a Construction Manager at Risk, work with the Construction
Manager at Risk to develop the final design documents.
d. compile a project manual that includes the Conditions of the Contract for Construction and
Specifications, which may include bidding requirements and sample forms
3. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any
time the CONSULTANT's Estimate of Probable Development Cost of the Work exceed the
OWNER's budget.
Page 3 of 13 pages
(Exhibit A — Consultant's Services)
4. Update the Estimate of Probable Development Cost of the Work.
5. Prepare and furnish three (3) copies of the 90% Construction 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 within
fifty (50) calendar days of authorization to begin services and review it with OWNER.
6. Prepare and fumish three (3) copies of the 100% Final Construction 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 within one hundred forty (140) calendar days of authorization to begin services and review it
with OWNER.
j. Revise the documents in response to OWNER's and other parties' comments, as appropriate, and
furnish five (5) final copies of the revised documents and a copy of the same in pdf format on compact
disks to the OWNER within seven (7) days after completion of reviewing it with OWNER.
B. (Modified) CONSULTANT's services under the Design Development Phase will be considered complete on
the date when the submittals required by paragraph A1.025.A.2 have been delivered to and accepted by
OWNER.
A 1.03 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. If OWNER chores to move forward with a Construction Manager at Risk, work with the
Construction Manager at Risk to determine a Guaranteed Maximum Price
b. Facilitate the distribution of Bidding/Proposal Documents to prospective bidders/proposers;
c. Either:
i. Organize and conduct a pre -bid conference for prospective bidders or
ii. Organize and participate in selection interviews with prospective contractors, as applicable;
d. Prepare responses to questions from prospective bidders/proposers and providing clarifications
and interpretations of the Bidding/Proposal Documents to the prospective bidders/proposers in the
form of addenda;
e. Either:
i. Participate in negotiations with prospective contractors and subsequently prepare a summary
report of the negotiation results, as directed by OWNER;
ii. Organize and conduct the opening of the bids, and subsequently documenting and distributing
the bidding results, as directed by the OWNER;
f. Confirm responsiveness of bids as applicable;
g. Recommend award to the OWNER; and
h. Attend the Council meeting for award of the contract for the Project.
Page 4 of 13 pages
( Exhibit A — Consultant's Services)
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.
A 1.03 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 7esting. Work with the selected general contractor to 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.
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.
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.
Page 5 of 13 pages
(Exhibit A Consultant's Services)
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; h7eld 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 Drmvings and Samples. Review and approve or take other appropriate action in respect to Shop
Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the design
concept of the completed Project as a functioning whole as indicated in the Contract Documents.
Such reviews and approvals or other action will not extend to means, methods, techniques, sequences
or procedures of construction or to safety precautions and programs incident thereto.
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
Page 6 of 13 pages
( Exhibit A — Consultant's Services)
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 A 1.04.A.5.a are expressly subject to the limitations set forth in paragraph A 1.04.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
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. Contractor's 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.
Page 7 of 13 pages
(Exhibit A — Consultant's Services)
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
A 1.04.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 A 1.04.A.9.
c. CONSULTANT shall transmit these documents to OWNER within thirty (30) days of
receipt of documents from Contractor.
d. (Added) Preparing and famishing to OWNER Record Drawings electronically in a format
approved by the OWNER and a printed version 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. If the Project involves more than one prime contract as indicated in paragraph A1.02.C,
Construction Phase services may be rendered at different times in respect to the separate contracts.
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.
A 1.04 Consultant Services. Basic Services shall also include the following CONSULTANT'S consultants' services:
A. Structural Engineering: Datum Engineers shall:
I . Establish design criteria and participate in selection of the Primary Structural System for the building.
2. Provide structural design of the Primary Structural System. For the purpose of definition, the Primary
Structural System consists of those materials normally specified in the following Sections, if required:
o 03 10 OOConerete Formwork
o 03 20 OOConcrete Reinforcing and Embedded Metal Assemblies
o 03 30 OOCast-in-place Concrete
o 03 38 OOPost-Tensioned Concrete
o 05 12 OOStructural Steel Framing
o 0521 00Steel Joist Framing
o 0531 13 Steel Floor Decking and Shear Studs
o 05 31 23 Steel Roof Decking
o 31 63 2913rilled Piers
Page 8 of 13 pages
(Exhibit A -- Consultant's Services)
3. Determine and coordinate those portions of the Primary Structural System to be designed by specialty
engineers as pre-engineered elements.
4, Consult on non-structural elements. Review the effect of elements not included in the Primary
Structural System, but which are attached thereto, and design the structure to accept and support such
elements, e.g., curtainwall, steel stairs, catwalks, miscellaneous metals, and elevators.
5. Attend design meetings in Dallas as required. Attend up to 3 team meetings in Baytown.
6, Prepare Contract Documents consisting of drawings and specifications for the Primary Structural
System. Construction drawings will be produced using Revit Structure, for the primary structural
elements. Only primary structural elements (piers, beams, columns, concrete walls, purlins, slabs,
decks) will be modeled. Secondary elements such as miscellaneous steel, shelf angles, braces, bridging,
curbs, etc., will not necessarily be included in the model. Items inside the concrete, such as reinforcing,
post -tensioning and embedded anchors, will not be modeled. The Revit model itself is not to be
considered a Contract Document.
7. Share the Revit BIM model with the design and construction team for coordination purposes. Datum
makes no representation that our structural model will be suitable for any particular purpose by other
team members, other than for general coordination and understanding of the layout of the primary
structural elements, and for inclusion in clash detection exercises. It is understood that the Model is a
reasonable representation of the primary structure, but should not be expected to be 100% accurate, and
should not be relied upon as such.
8. Perform checking and coordination of the structural documents.
9. Assist in defining geotechnical investigation requirements.
10. Assist in establishing material testing and inspection requirements.
11. Review required shop drawings and other required contractor submittals during construction of
materials designed and specified by Datum within a 10-working day turn around.
12. Perform up to 10 site visits, during the construction phase, to observe and become generally familiar
with the quality and progress of the construction work relative to the Primary Structural System.
B. MEP / FP Engineering: E&C Engineers & Consultants, Inc., shall:
I. Design of Mechanical Systems for the building including service from a new chiller and AHU system,
DX rooftop units or VRF system as deemed appropriate by the owner and design team.
2. Design of the Power service to the building from the utility.
3. Design of Electrical lighting and power circuitry. E&C will provide circuitry design for the outlet and
light fixture lay -outs that are provided by the Architect as well as connection to plumbing and
mechanical equipment.
4. Design of the plumbing systems within 5' of the exterior skin of the building. Plumbing systems shall
include potable water, hot water, waste, vent and storm drainage. E&C will coordinate with the Civil
Engineer for connections to piping outside of the 5' perimeter.
5. Provide Fire Protection specifications and basic pump size verification along with anticipated fire loop
lay -out in the addition to aid the Fire Protection Contractor in the full certified design of the system.
6. Produce documents in a software acceptable to OWNER and CONSULTANT.
7. Attend project meetings whether at the location or via web- meeting. It is assumed meetings will occur
once every 2 weeks to once per month depending on the extent of the work being done with MEP
systems at that time.
8. Provide review sets at SD, 50% DD, 100% DD 50% CD, 95% CD, Bid & Permit and construction as
well as attend a review meeting at each of these stages with the owner and/or Architect.
9. Provide construction administration services for the construction of the project including responding to
AHJ review comments, review of submittals, answering contractor's RFIs, and providing field
observation reports approximately once per month during the construction of the MEP systems. E&C
will assume to attend one construction meeting per month coinciding with field observations.
10. Aid the commissioning agent as required to provide a working building.
11. Provide fire alarm and fire protection drawings that will be schematic in nature, but not signed, per the
rules of the State of Texas. The licensed installing Fire Protection contractor and Fire Alarm
Contractor shall be responsible for the final working systems they install per the State of Texas
requirements.
Page 9 of 13 pages
(Exhibit A — Consultant's Services)
12. If the building is to be LEED certified, provide the submissions that pertain to the MEP systems
C. Interior Design / Furniture: Architectural Interiors shall provide interior design services related to:
o Programming
o Conceptual Design
o Schematic Design
o Design Development
o Construction Documentation
o Bidding
o Supervision of furniture installation
PART 2 -- ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance. The services listed hereinbelow shall only
be paid by OWNER if OWNER requests such services in writing prior to the service being performed and if
such services are not included in Part 1 "Basic Services." The fact that a service is listed hereinbelow, does not
remove such service from Basic Services and what constitutes Basic Services shall be construed liberally.
A. Additional Services. The following are required additional services:
1. On -Site Civil Engineering. The scope of services for Civil Engineering includes construction falling
within the Project's property lines. These services include, but are not limited to: stormwater, paving,
topography, site lighting, etc. These services are to be provided as part of the Schematic Design, Design
Development and Construction Document phases.
2. Off -Site Civil Engineering. Upon acceptance of the Conceptual Site Plan, if off -site engineering services
are required, the Scope of Services for Civil Engineering includes construction falling outside the property
lines or within on -site easements and/or the relocation of existing utilities. The professional fee shall be
agreed upon by OWNER, CONSULTANT and Civil Engineer based upon a defined Scope of Services.
These services are to be provided as part of the Construction Document Phase.
3. Landscape Architectural Services. Landscape Architectural Services shall be provided by a registered
Landscape Architect, selected by CONSULTANT, to provide the Scope of Services to be defined by the
accepted Master Site Plan. These services are to be provided as part of the Design Development and
Construction Document Phases and shall include the following tasks:
Task 1 - Plaza Design Support. CONSULTANT'S consultant Kimley-Horn ("KH") will assist the
design team in layout out of the plaza regarding paving, planters, site furnishings, and landscape area.
Task 2 - Landscape Plans. KH will prepare Landscape Plans one time in an effort to comply with the
directives of the OWNER and the minimum landscape requirements set forth in the review agency's
published regulations. Enhanced landscaping will be provided around the building foundation, plaza
and entries only. This task shall include the location, size, quantity, scientific name, common name,
and specifications for planting materials, as well as calculations showing the requirements and
relevant notes and details.
Task 3 - Irrigation Plans. Following 50% Construction Document approval from the review agency
and OWNER of the Landscape Plans, KH will prepare Irrigation Plans. The Irrigation Plans will
identify a proposed head/drip layout, valve size and location, point of connection and related
appurtenances, pipe sizes, sleeve locations, and Controller location. The plans shall include the
OWNER's preferred irrigation equipment type (Toro, Hunter, Rainbird, etc.) and irrigation
equipment power source (Electrical or Solar).
Page 10 of 13 pages
(Exhibit A — Consultant's Services)
Task 4 - Permitting Assistance. KH will address reasonable review comments provided by the review
agency and return revised plans to the OWNER for resubmittal to the agency. It is anticipated that
OWNER will be the only permitting agency for the plan set. This task does not include permitting or
submittal fees or fees for any permit expeditor.
Task 5 - Construction Phase Services. KH will provide the construction phase services as requested.
4. Permitting Coordination Services. CONSULTANT shall provide permitting coordination services as
follows:
a. Define all permits and/or review agency requirements and provide a graphic chronological
assessment.
b. Prepare and/or coordinate the permitting applications and make the submittals in a timely manner
and in accordance with the schedule to be submitted by CONSULTANT upon execution of this
agreement by OWNER.
c. Monitor the permitting process and provide written progress reports to OWNER.
These services are to be provided as part of the Procurement / Bidding Phase.
5. Site Surveying. This service is to be provided by CONSULTANT. CONSULTANT shall obtain the
services of a Registered Land Surveyor, acceptable to OWNER, for a site boundary and topographic
survey for the subject property. The professional fee shall be established based upon a defined Scope of
Services. These services are to be provided as part of the Programming and Schematic Design Phases.
6. Geotechnical Engineering. This service is to be provided by CONSULTANT. CONSULTANT shall
obtain the services of a Professional Geotechnical Engineering firm for purposes of sub- surface soils
investigation, percolation testing, and foundation recommendations. The professional fee shall be
established based upon a defined Scope of Services. These services are to be provided as part of the
Programming and Schematic Design Phases.
7. Site and Building ldentifrcation/Graphic Design. Provide graphic design services associated with the
design and construction administration of building identification, graphics and signage. These services are
to be provided as part of the Schematic Design, Design Development, and Construction Documents
Phases.
8. Facility Energy ,4nalysis. CONSULTANT shall prepare Supplementary Design Documents prepare a
detailed energy analysis, to be conducted by an appropriate entity with expertise in providing this service.
The purpose of the analysis shall be to maximize energy efficient systems, including insulation,
fenestration and similar passive energy applications, to the extent allowable by the project construction
budget. This service will be required if the City elects to pursue LEED certification for the proposed
project. These services are to be provided as part of the Construction Document Phase.
9. Computer Cable System Design Coordination. CONSULTANT shall meet with the City's Project
Manager and the Office of Information Technology staff and establish the basic guide lines for a computer
cable system for the facility and shall subsequently prepare a cable plan with appropriate distribution
spaces in the facility. These services are to be provided as part of the Design Development and
Construction Document Phases.
10. Audio-visual Consultant. CONSULTANT shall obtain the services of an individual/Firm with expertise
in audio-visual systems and, based upon a defined Scope, shall provide OWNER with a proposed
professional fee. These services are to be provided as part of the Design Development and Construction
Document Phases.
11. Security Consultant. CONSULTANT shall obtain the services of a qualified Security Consultant for
services related to site and building security systems, including C.C.T.V., access/egress controls, locking
devices, and site security systems. The professional fee shall be established based upon a defined Scope of
Page I I of 13 pages
(Exhibit A — Consultant's Services)
Services. These services are to be provided as part of the Design Development and Construction
Document Phases and shall include voice/data, audio/visual, security systems; attendance at design
meetings; and design modifications, which may occur during the design and construction process
12. Communications Consultant. CONSULTANT shall be responsible for all services related to the
coordination of the communications system(s) for these facilities including, but not limited to, transfer of
existing equipment, selection and bidding of new equipment, itemisation of facility services required (such
as electrical, mechanical equipment, etc.) and any other criteria relative to the communications systems of
this facility. These services are to be provided as part of the Design Development and Construction
Document Phases.
13. Record/Conformance Draivings. This service is typically provided by the CM, but in the event that
OWNER desires CONSULTANT to develop a record or "as -built" set of construction documents,
provided at the conclusion of construction, then CONSULTANT shall be entitled to a professional fee as
noted. These services are to be provided post Construction Administration.
14. Facility or Site Wodel Computer Renderings. CONSULTANT shall develop up to three (3) computer
rendering(s) of the facilities or the overall Master Plan, illustrating site utilization, building massing,
access and egress roadways, parking areas, pedestrian walkways and stormwater retention areas. These
services are to be provided as part of the Schematic Design and Design Development Phases.
15. ADA/TDLR Consulting: Plan review and inspection to see if the Project is subject to the Architectural
Barriers Act.
B. Optional Additional Services. Optional additional services may include, but not be limited to, the following:
I . Additional Off -Site Civil Engineering. Upon acceptance of the Conceptual Site Plan, if additional off -site
engineering services are required, a scope of work shall be established. Work typically identified as the
Scope of Services for Civil Engineering is construction falling outside the property lines or within on -site
easements and/or the relocation of existing utilities. The Professional fee shall be agreed upon by
OWNER, CONSULTANT and Civil Engineer based upon a defined Scope of Services. These services are
to be provided as part of the Construction Document Phase.
2. Additional Constritction Observation. CONSULTANT shall provide standard construction observation
services during the Construction Phase. As also noted in this agreement, these services constitute twenty
percent (20%) of the value of Basic Services. The Construction Documents will stipulate the period
allowed the Construction Manager (CM) for construction, which is anticipated to be fourteen (14) months.
CONSULTANT shall be entitled to Additional Fees if the CM exceeds this stipulated period which shall
be negotiated with the input of the City, said fees being a pro-rata monthly fee of the fee allocated for this
phase. These fees shall be documented in the contract specifications as the responsibility of the
Construction Manager and shall be payable to OWNER to reimburse OWNER for payments to
CONSULTANT. Such fees will only be paid to CONSULTANT if OWNER receives payment for the
same. These services are to be provided as part of the Construction Administration Phase.
Post OccupancylWarranty Inspection. Eleven months after occupancy of the building CONSULTANT
and M/E/P Engineers shall conduct a warranty inspection of the building and shall document all systems
and elements that are in need of corrective action on the part of the CM. CONSULTANT shall
subsequently re -inspect the facility(s) to establish that noted items have been satisfactorily resolved or if
additional work is required on the part of the CM. Note that the fee for this service shall be due at the time
such services are rendered. These services are to be provided eleven (1 l) months after the completion of
construction.
Page 12 of 13 pages
(Exhibit A --Consultant's Services)
4. Sustainable Design Concept Implementation In the event the City desires to pursue Sustainable Design
Concept Implementation of the project; the Design Team will be responsible for identifying, documenting,
and implementing a variety of sustainable design components for the City that can be accomplished within
the defined project budget. These services are to be provided as part of the Design Development and
Construction Document Phases.
5. Special Engineering. Special Structural Engineering services will be provided by
CONSULTANT/Engineer, when authorized by OWNER, if unusual site soil or geographical conditions
are found to exist. An additional fee in an amount to be determined shall be established based upon the
conditions discovered and the complexity of services necessary to correct said conditions. These services
are to be provided as part of the Construction Document Phase.
6. Grants Identification. CONSULTANT shall include, in his report (Phase I -A) information as to additional
potential grants available for a project of this type. It shall identify funding sources, availability of funds
and methodology (when appropriate) as to obtaining grant funding. These services are to be provided as
part of the Programming Phase.
7. Grants Application. CONSULTANT, if so desired by the City, shall provide grant preparation services.
The professional fee(s) shall be established after identification of a potential grant and/or grants. These
services are to be provided as part of the Programming Phase.
8. Community Outreach Program. If desired, CONSULTANT and its team shall participate in up to three (3)
public presentations in a collective effort of engaging the local community at large. CONSULTANT will
assist with the development of the necessary presentation materials and format and will provide one copy,
both digital and hard copy version, to the City for its records. A minimum of two (2) representatives of
CONSULTANT's team shall participate in each of the requested presentations. These services are to be
provided as part of the Schematic Design, Design Development and Construction Document Phases.
Page 13 of 13 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
CONSULTANT
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 ofall 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)
J. 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 $3,180,377.25, based upon the rate
schedule, which is attached as Appendix I of
Exhibit C and incorporated herein for all intents
and purposes. Compensation for Basic Services
will be distributed in an amount not to exceed the
following:
I. Schematic Design .....................$ 631,892.00
Arch
$379,291 20
Structural
.$67,293 60
MEP/FP
$140,704 80
Interior Design
$24,470 40
Estimates of Probable
Development Costs .
$20,132
2. Design Development .................$945,824.00
Arch
$568,936 80
Structural
$100,940 40
MEP/FP
$211,057 20
Interior Design
$36,705 60
Estimates of Probable
Development Costs
$28,194
3. Construction Documents
...........$640,571.25
Arch
$474,1 14 00
Structural
$84,117 00
MEP/FP
$175,881 00
Interior Design
$30,588 00
Estimates of Probable
Development Costs
$32,210
Record As -Built Drawings
$12,240
Site Visits
$28,811 25
Initial:
OWNER
CONSULTANT
4. Bidding......................................$152,940.00
Arch..
...$94,822 80
Structural
$16,823 40
MEP/FP
$35,176 20
Interior Design
$6,1 17 60
5. Construction Services
................ $61 1,760.00
Arch
$379,291 20
Structural
$67,293 60
MEP/FP
$140,704 80
Interior Design
$24.470 40
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.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Paymenl
A. (Deleted)
C4.03 For Additional Services
A. OWNER shall pay CONSULTANT for
Additional Services as follows:
Page 1 of 2 pages
( Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
1. General. For services of
CONSULTANT's employees and consultants
engaged directly on the Project pursuant to
paragraph Part 2 of Exhibit A of the Agreement,
an amount based upon the actual hours worked
and the rate schedule, which is attached as
Appendix I of Exhibit C and incorporated herein
for all intents and purposes, plus reimbursable
expenses. Required Additional Services of
CONSULTANT's employees and/or consultants
shall not exceed the following for each phase
listed:
Additional Services
On -Site Civil Engineering
$233,450
Design Development .
$70,035
Construction Documents .
$163,415
Off -Site Civil Engineering.
....
$27,500
Design Development .
$8,250
Construction Documents
$19 250
Landscape Architecture
$28.270
Design Development ...
$8,481
Construction Documents
$19,789
Permitting Coordination Services
$16,800
Design Development
$5,040
Construction Documents
$11,760
Site Sui veyiug Alluwance
$21,890
Schematic Design
$21,890
Gcotechnical Engineering Allowance
$15,250
Schematic Design
$15,250
Site and Building Identifications
$12.400
Design Development
$3,720
Construction Documents
$8,680
Facility Energy Analysis
$11,980
Construction Documents
$11,980
Computer Cabling Consulting ..
$74.060
Design Development
$7,406
Construction Documents
$66,654
Audio/Video Consulting
$48,620
Design Development
$14,586
Construction Documents
$34,034
Security Consulting ...
$94,860
Design Development .
$28,458
Construction Documents
$66,402
Record/Conformance
$9.870
Construction Documents
$9,870
Facility or Site Renderings
$6.780
Design Development
$6,780
ADAlfDLR Consulting
$4,000
Construction Documents
$4,000
2. (Deleted)
C4.04 For Reimbursable E•.:rpenses
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
$1,000.00 for which the CONSULTANT seeks
reimbursement. Reimbursable Expenses shall not
exceed a total of $52,000.00.
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.
D. (Deleted).
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 CONSULT.A.NT's Consultant's Charges
A. (Deleted)
C4.06 Direct Labor Costs
A. (Deleted)
B. (Deleted)
C4.07 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 percentage complete of each Project
Phase for the billing period for services performed by
all of CONSULTANT's employees, plus
Reimbursable Expenses and CONSULTANT's
Consultant, 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
Architects Design Group:
Principals................................................................................................................................
$205.00/hr
Studio Department Principals/Project Architects....................................................................
$182.00/hr.
Associates.................................................................................................... ....
..................... .
$152.00/hr.
Project Managers....................................................................................................................
$145.00/hr.
Designers..................................................................................................................................
$87.00/hr.
Computer Draftsperson I.........................................................................................................
$65.00/hr.
Computer Draftsperson 11.......................................................................................................... $65.00/hr.
ComputerSupervisor.................................................................................................................
$95.00/hr.
Threshold Inspector (Certified)...............................................................................................
$83.00/hr.
Construction Administrators...................................................................................................$102.00/hr.
Specification Writer.................................................................................................................. $98.00/hr.
SeniorDraftsperson..................................................................................................................
$87.00/hr.
DraftspersonI...........................................................................................................................$73.00/hr.
Draftsperson11........................................................................................................................... $65.00/hr.
AccountingServices.................................................................................................................. $83.00/hr.
Staff ( Word Processor 1)............................................................................................................
$50.00/hr.
GraphicDesigner.......................................................................................................................
$72.00/hr.
Civil Engineering: Kimley-Horn
Principal in Charge............................................................................... .....
.............................
$300.00/hr.
Senior Project Manager....................................................................................................
$260.00/hr.
ProjectManager.....................................................................................................................
$215.00Ihr.
ProjectEngineer.....................................................................................................................
$175.00/hr.
.... ....................
Senior CAD Technician..................................................................... ..... ........
$165.00/hr.
ProjectAnalyst........................................................................................................................
$145.00/hr.
CADTechnician......................................................................................................................
$115.00/hr.
OfficeAdministrator...............................................................................................................
$105.00"hr.
Landscape Architecture: Kimley-Horn
Principal in Charge.................................................................................................................
$300.00/hr.
....................................
Senior Project Manager................................................................... ....
$260.00/hr.
ProjectManager.....................................................................................................................
$215.00/hr.
ProjectEngineer...................................................................................................................
$I75.00/hr.
Senior CAD Technician...........................................................................................................
$165.00/hr.
ProjectAnalyst ....................................... :...............................................................................
$145.00%hr.
CADTechnician......................................................................................................................
$115.0011r.
Office Administrator...............................................................................................................
$105.00/hr.
Structural Engineering: Datum Engineers
SeniorPrincipals......................................................................................................................
$315.00/hr.
Principal II........................................................................................................ ...
$235.00/hr.
PrincipalI...............................................................................................................................
$205.00/hr.
Senior Project Manager..........................................................................................................
$175.00/hr.
ProjectManager.....................................................................................................................$160.00/hr.
...................
Project Engineer.............................................................................................. ....$130.00/hr.
GraduateEngineer..................................................................................................................
$120.00/hr.
Senior Production Manager.....................................................................................................$170.00/hr.
Senior Technician................................................................................... ....
.............................
$145.00/hr.
Technicianll............................................................................................................................
$125.00/hr.
TechnicianI..............................................................................................................................
$87.50/hr.
Page I of 2 pages
(Appendix 1 to Exhibit C Rule Schedule)
SupportPersonnel......................................................................................................................$88.00/hr.
Senior Support Personnel........................................................................................................$145.00/hr.
MEP / FP Engineering: E&C Engineers & Consultants, Inc.
Principal.................................................................................................................. ................
$320.00/hr.
AssociatePrincipal.................................................................................................................
$250.00/hr.
SeniorEngineer....................................................................................... .......................
$200.00/hr.
Engineer...................................................................................................................................
$180.00/hr.
Engineerin Training................................................................................................................
$165.00/hr.
SeniorDesigner......................................................................................................................
$180.00/hr.
Designer...................................................................................................................................
$150.00/hr.
Dedicated Construction Manager...........................................................................................
$200.00/hr.
Production...............................................................................................................................
$125.00/hr.
Clerical...................................................................................................................................
$105.00/hr.
Technology / Security Consultant: TLC Engineering Solutions
Director....................................................................................................................................$205.00/hr.
Senior Engineer, Manager...................................................................................................... $175.00/hr.
Project Engineer, Manager ................................................................................................. $150.00/hr.
Engineer, Specialist................................................................................................................$120.00/hr.
Graduate Engineer, Designer, Admin Secretary ....................................................................... $95.00/hr.
Technician, Secretary, Intern, Clerical..................................................................................... $70.00/hr.
Interior Design: Architectural Interiors
Interior Design Principal........................................................................................................ $105.00/hr.
Interior Design Designer........................................................................................................... $77.00/hr.
Interior Design Specification Writer......................................................................................... $76.00/hr.
Interior Design Draftsperson 1................................................................................................... $66.00/hr.
Page 2 of 2 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 I pages
(Appendix 2 to Exhibit C Reimbursement of Coss)
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:
And To:
OWNER
CONTRACTOR
Initial:
OWNER
CONSULTANT
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:
I . Said Notice is given with the skill and care ordinarily used by members of the Consultant's 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
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, Consultants, 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 ofA-: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
(L4V�)
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)