Loading...
Ordinance No. 9,269ORDINANCE NO. 9269 ® AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH BRICKER + CANNADY ARCHITECTS REGARDING ARCHITECTURAL SERVICES FOR THE COMMUNITY CENTER; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager and the City Clerk of the City of Baytown to execute and attest to a Professional Services Agreement with Bricker + Cannady Architects regarding Architectural Services for the Community Center. A copy of said Professional Services Agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: 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 20th day of November, 2001. ,4� c. PETE C. ALFARO, ayor ATTEST: L Y W. STMITH, City Clerk APPROVED AS TO FORM: teNACIO RAMIREZ , City Attorney dAjyMyDocuments \Co uncit \01- 02 \November\ApproveArch itectural Con tract4CommunityCenter 11 T H E r 1 LJ A M E R I C A N I N. S T.1 T U T E �hiitlilC AIA Document B141 0 F A R C H I T E C T S Standard Form of Agreement Between Owner and Architect 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AGREEMENT made as of the sixteenth day of November Two Thousand and One BETWEEN the Owner: The City of Baytown (Name and address) P.O. Box 424 Baytown, Texas 77522 -0424 and the Architect: Bricker + Cannady Architects (Name and address) 5075 Westheimer, Suite 770 Houston, Texas 77056 For the following Project: (Include detailed description of Project, location, address and scope.) Master Planning and Renovation of: Baytown Community Building 2407 Market Street Baytown, Texas Re: Project Scope - Exhibit 'C' in. the year of The Owner and Architect agree as set forth below. ® Copyright 1917, 1926, 1948, 1951, 1953, 1958, 1961, 1963, 1966, 19,67, 1970, 1974, 1977, ©1987 by The American Institute of Architects, 1735 New York Avenue, N.W., Washington, D.C. 20006. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will be subject to legal prosecution. AIA DOCUMENT 8141 • OWNER - ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIA® • ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 8141 -1987 1 WARNING: Unlicensed photocopying violates U.S. copyright laws and Is subject to legal prosecution. r ',I ! TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT ARTICLE 1 ARCHITECT'S RESPONSIBILITIES. 1.1 ARCHITECT'S SERVICES 1.1.1 The Architect's services consist of those services per- formed by the Architect, Architect's employees and Architect's consultants as enumerated in Articles 2 and 3 of this Agreement and any other services included in Article 12. 1.1.2 The Architect's services shall be performed as expedi- tiously as is consistent with professional skill and care and the orderly progress of the Work. Upon request of the Owner, the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner. 1.1.3 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 11.5.1. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 2.1 DEFINITION 2.1.1 The Architect's Basic Services consist of those described in Paragraphs 2.2 through 2.6 and any other services identified in Article 12 as part of Basic Services, and include normal struc- tural, mechanical and electrical engineering services. 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Architect shall review the program furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner. 2.2.2 The Architect shall provide a preliminary evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other, subject to the limita- tions set forth in Subparagraph 5.2.1. 2.2.3 The Architect shall review with the Owner alternative approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed -upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Docu- ments consisting of drawings and other documents illustrating the scale and relationship of Project components. 2.2.5 The Architect shall submit to the Owner a preliminary estimate of Construction Cost based on current area, volume or other unit costs, 2.3 DESIGN DEVELOPMENT PHASE 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, struc- tural, mechanical and electrical systems, materials and such other elements as may be appropriate. 2.3.2 The Architect shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Docu- ments and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifica- tions setting forth in detail the requirements for the construc- tion of the Project. - 2.4.2 The Architect shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Condi- tions of the Contract, and the form of Agreement between the Owner and Contractor. 2.4.3 The Architect shall advise -the Owner of any adjustments to previous preliminary estimates of Construction Cost indi- cated by changes in requirements or general market conditions. 2.4.4 The Architect shall assist the Owner in connection with the Owner's responsibility for-filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.5 BIDDING OR NEGOTIATION PHASE 2.5.1 The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. 2.6 CONSTRUCTION PHASE— ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under. this Agreement commences with the award of the Contract for Construction and termi- nates at the earlier of the issuance to the Owner of the final Certificate for Payment. or 60 days after the date of Substan= tial Completion of the Work. 2.6.2 The Architect shall provide administration of the Con- tract for Construction as set forth below and in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement, unless otherwise provided in this Agreement. 2.6.3 Duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect with consent of the Contractor, which consent shall not be unreasonably withheld. AIA DOCUMENT B141 • OWNER- ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIA® • ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. B141 -1987 2 r r n 1 2.6.4 The Architect shall be a representative of and shall advise and consult with the Owner (1) during construction until final payment to the Contractor is due, and (2) as an Additional Ser- vice at the Owner's direction from time to time during the cor- rection period described in the Contract for Construction. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument. 2.6.5 The Architect shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing to become generally familiar with the progress and quality of the Work completed and to determine in general if the Work is being performed in a man- ner indicating that the Work when completed will be in accor- dance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. On the basis of on -site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the Work. (More extensive site representation may be agreed to as an Additional Service, as described in Paragraph 3.2.) 2.6.6 The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures; or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility under the Contract for Construction. The Architect shall not be responsible for the Contractor's schedules or failure to carry out the Work in accor- dance with the Contract Documents. The Architect shall not have control over or charge of acts or omissions of the Contrac- tor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 2.6.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been spe- cially authorized, the Owner and Contractor shall communicate through the Architect. Communications by and with the Archi- tect's consultants shall be through the Architect. 2.6.9 Based on the Architect's observations and evaluations of the Contractor's Applications for Payment, the Architect shall review and certify the amounts due the Contractor. 2.6.10 The Architect's certification for payment shall consti- tute a representation to the Owner, based on the Architect's observations at the site as provided in Subparagraph 2.6.5 and on the data comprising the Contractor's Application for Pay- ment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subse- quent tests and inspections, to minor deviations from the Con- tract Documents correctable prior to completion and to spe- cific qualifications expressed by the Architect. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certi- fied. However, the issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaus- tive or continuous on -site inspections to check the quality or quantity of the Work, (2) reviewed construction means, meth- ods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material sup- pliers and other data requested by the Owner to substantiate the Contractor's right to payment or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Architect shall have authority to reject Work which does not conform to the Contract: Documents. Whenever the Architect considers .it necessary or advisable for implementa- tion of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with the provisions of the Contract Docu- ments, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exer- cise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other per- sons performing portions of the Work. 2.6.12 The Architect shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action shall be taken with. such reasonable promptness as to cause no delay in the Work or in the con- struction of the Owner or of separate contractors, while allow- ing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not con- ducted for the purpose of determining the accuracy and com- pleteness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect shall be entitled to rely upon such certification to establish that the materials, systems or equip- ment will meet the performance criteria required by the Con- tract Documents. 2.6.13 The Architect shall prepare Change Orders and Con- struction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Subparagraphs 3.1:1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 2.6.14 The Architect shall conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, shall receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract Documents and assem- bled by the Contractor, and shall issue a final Certificate for Pay- ment upon compliance with the requirements of the Contract Documents. AIA DOCUMENT B141 • OWNER = ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIA® • ©1987 3 8141 -1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. r 2.6.15 The Architect shall interpret and decide matters con- cerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 2.6.16 interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial deci- sions, the Architect shall endeavor to secure faithful perfor- mance by both Owner and Contractor, shall not show partiality to either, and shall not be liable for results of interpretations or decisions so rendered in good faith. 2.6.17 The Architect's decisions on matters relating to aesthe- tic effect shall be final if consistent with the intent expressed in the Contract Documents. 2.6.18 The Architect shall render written decisions within a reasonable time on all claims, disputes or other matters in ques- tion between the Owner and Contractor relating to the execu- tion or progress of the Work as provided in the Contract Documents. 2.6.19 The Architect's decisions.on claims, disputes or other matters, including those in question between the Owner and Contractor, except for those relating to aesthetic effect as pro - vided in Subparagraph 2.6.17, shall be subject to arbitration as provided in this Agreement and in the Contract Documents. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in Article 12, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Paragraphs 3.2'and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Paragraph 3.3 are required due to circumstances beyond the Architect's control, the Architect shall notify the Owner prior to com- mencing such services:. If the Owner deems that such services described under Paragraph 3.3 are not required, the Owner shall give prompt written notice to the Architect. If the'Owner indicates in writing that all or part of such Contingent Addi- tional Services are not required, the Architect shall have no obli- gation to provide those services. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subparagraph 2.6.5 is required, the Architect shall provide one or more Project Representatives to assist in carry- ing out such additional on -site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compen- sated therefor as agreed by the Owner and Architect. The duties, responsibilities and limitations of authority of Project Representatives shall be as described in the edition of AIA Document B352 current as of the date of this Agreement, unless otherwise agreed. 3.2.3 Through the observations by such Project Represen- tatives, the Architect shall endeavor to provide further protec- tion for the Owner against defects and deficiencies in the Work, . but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Making revisions in Drawings, Specifications or other documents when such revisions are: .1 inconsistent with approvals or instructions previously given by the Owner, including revisions made neees-. sary by adjustments in the Owner's program or Proj- ect budget; .2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents; or .3 due to changes required as a result of the Owner's fail- ure to render decisions in a timely manner. 3.3.2 Providing services required because of significant changes in the Project including, but not limited to, size, qual- ity, complexity, the Owner's schedule, or the method of bid- ding or negotiating and contracting for construction, except for services required under Subparagraph 5.2.5. 3.3.3 Preparing Drawings, Specifications and other documen- tation and supporting data, evaluating Contractor's proposals, and providing other services in connection with .Change Orders and Construction Change Directives. 3.3.4 Providing services in connection with evaluating substi- tutions proposed by the Contractor, and making subsequent revisions to Drawings, Specifications and other documentation resulting therefrom. 3.3.5 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and fur- nishing services required in connection with the replacement of such Work. 3.3.6 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.7 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work, 3.3.8 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding - except where the Architect is party thereto. 3.3.9 Preparing documents for alternate, separate or sequential bids or providing services in connection with bidding, negotia- tion or construction prior to the completion of the Construc- tion Documents Phase. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing analyses of the Owner's needs and program- ming the requirements of the Project. 3.4.2 Providing financial feasibility or other special studies. 3.4.3 Providing planning surveys, site evaluations or com- parative studies of prospective sites. AIA DOCUMENT 8141 • OWNER - ARCHITECT AGREEMENT • FOURTEENTH EDITION • A10 • ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. 8141 -1987 4 f ' 3.4.4 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 3.4.5 Providing services relative to future facilities, systems and equipment. 3.4.6 Providing services to investigate existing conditions or facilities or to make measured drawings thereof: 3.4.7 Providing services to verify the accuracy of drawings or other information furnished by the Owner. 3. 4.8 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordi- nation of services required in connection with construction performed and equipment supplied by the Owner. 3.4.9 Providing services in connection with the work of a con- struction manager or separate consultants retained by the Owner. 3.4.10 Providing detailed estimates of Construction Cost 3.4.11 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.12 Providing analyses of owning and operating costs. 3.4.13 Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3.4.14 Providing services for planning tenant or rental spaces. 3.4.15 Making investigations, inventories of materials or equip- ment, or valuations and detailed appraisals of existing facilities. 3.4.16 Preparing a set of reproducible record drawings show- ing significant changes in the Work made during construction based on marked -up prints, drawings and other data furnished by the Contractor to the Architect. 3.4.17 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. 3.4.18 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Cer- tificate for Payment, more than 60 days after the date of Sub- stantial Completion of the Work. 3.4.19 Providing services of consultants for other than archi- tectural, structural, mechanical_ and electrical engineering por- tions of the Project provided as a pan of Basic Services. 3.4.20 Providing any other services not otherwise included in this Agreement or -not customarily furnished in accordance with generally accepted architectural practice. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 The Owner shall provide full information regarding requirements for the Project; including a program which shall set forth the Owner's objectives, schedule, .constraints and cri- teria, including space requirements and relationships, flexi- bility, expandability, special equipment, systems and site requirements. 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. 4.3 If requested by the Architect, the Owner shall furnish evi- dence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. 4.5 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restric- tions, boundaries and contours of the site; locations, dimen- sions and necessary data pertaining to existing buildings; other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a project benchmark. 4.6 The Owner shall furnish the services of geotechnical engi- neers when such services are requested by the Architect. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resis- tivity tests, including necessary operations for anticipating sub- soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consul- tants when such services are reasonably required by the scope of the Project and are requested by the Architect. 4.7 The Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all. legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Paragraphs 4.5 through 4.8 shall'be furnished at the Owner's expense, and the Architect shall be entitled to ' rely upon the accuracy and completeness thereof. 4.10 Prompt written notice shall be given by the Owner to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.11 The proposed language of certificates or certifications requested of the Architect or Architect's consultants shall be submitted to the Architect for review and approval at least 14 days prior to execution. The Owner shall not request certifica- tions that would require knowledge or services beyond the scope of this Agreement. AIA DOCUMENT 8141 • OWNER- ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIAD • ©1987 5 8141 -1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W.,.WASHINGTON, D.C. 20006 WARNING: Unlicensed photocopying violates U.S. copyright laws and Is subject to legal prosecution. r ARTICLE 5 CONSTRUCTION COST 5.1 DEFINITION 5.1.1 The Construction Cost shall be the total cost or esti- mated cost to the Owner of all elements of the Project designed or specified by the Architect. 5.1.2 The Construction .Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Con- tractor's overhead .and profit: In addition, a reasonable allow- ance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction. . 5.1.3 Construction Cost does not include the compensation of the Architect and Architect's consultants, the costs of the land, rights -of -way, financing or other costs which are the respon- sibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Con- struction Cost, if any, prepared by the Architect, represent the Architect's best judgment as a design professional familiar with the construction industry. It is recognized, however, that nei- ther the Architect nor the Owner has control over the cost of labor, materials or.equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions: Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Architect. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the.furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties hereto. If such a fixed limit has been established, the Architect shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, com- ponent systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Docu- ments alternate bids to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction. 5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. 5.2.4 If a fixed limit of Construction Cost (adjusted as pro- vided in Subparagraph 5.2.3) is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall: ® .1 give written approval of an increase in such fixed limit; .2 authorize rebidding or renegotiating of the Project within a .reasonable time; .3 if the Project is abandoned, terminate in accordance with Paragraph 8.3; or .4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. 5.2.5 If the Owner chooses to proceed under Clause 5.2.4.4, the Architect, without additional charge, shall modify the Con- tract Documents as necessary to comply with the fixed limit, if established as a condition of this Agreement. The modification of Contract Documents shall be the limit of the Architect's responsibility arising out of the establishment of a fixed. limit. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6.1 The Drawings, Specifications and other documents pre- pared by the Architect for this Project are instruments of the Architect's service for use solely'with respect to this Project and, unless otherwise provided, the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright. The Owner shall be permitted to retain copies, including repro -_ ducible copies, of the Architect's Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project. The Archi- tect's Drawings, Specifications or other documents shall not be used by the Owner or others on other projects,. for additions to this Project or for completion of this Project by others, unless the Architect is adjudged to be in default under this Agreement, except by agreement in writing and with appropriate compen- sation to the Architect. 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in deroga- tion of the Architect's reserved rights. ARTICLE 7 ARBITRATION 7.1 Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agree- ment or breach thereof shall be subject to and decided by arbi- tration in accordance with the Construction Industry Arbitra- tion Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. 7.2 Demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitra- tion Association. A demand for arbitration shall be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statutes of limitations. 7.3 No arbitration arising out of or relating to this Agreement shall include; by consolidation, joinder or in any other manner, an additional person or entity not a party to this Agreement, AIA DOCUMENT 8141 • OWNER - ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIA® • ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, DI.C. 20006 WARNING:. Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. B141 -1987 6 11 except by written consent containing a specific reference to this Agreement signed by the Owner, Architect, and any other person or entity sought to be joined. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of any claim, dispute or other matter in question not described in the written consent or with a person or entity not named or described therein. The foregoing agree- ment to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by the parties to this Agreement shall be specifically enforceable in accordance with.., applicable law in any court having jurisdiction thereof. 7.4 The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 8 TERMINATION, SUSPENSION OR ABANDONMENT 8.1 This Agreement.may be terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terns of this Agreement through no Fault of the party initiating the termination. 8.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated for ser- vices performed prior to notice of such suspension. When the Project is resumed, the Architect's compensation shall be equi- tably adjusted to provide for expenses incurred in the interrup- tion and resumption of the Architect's services. 8.3 This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Architect in the event. that. the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Architect may terminate this Agreement by giving written notice. 8.4 Failure of the Owner to make payments to the Architect in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. 8.5 If the Owner fails to make payment when due the Archi- tect for services and expenses, the Architect may, upon seven days' written notice to the Owner, suspend performance of ser- vices under this Agreement. Unless payment in full is received by the Architect within seven days of the date of the notice, the suspension shall take effect without further notice. In the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused-the Owner because of such suspension of services. 8.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Paragraph 8.7. 8.7 Termination Expenses are in addition to compensation for Basic and Additional Services, and include expenses which are directly attributable to termination. Termination Expenses shall be computed as a percentage of the total compensation for Basic Services and Additional Services earned to the time of ter- mination, as follows: ® 1 Twenty percent of the total compensation for Basic and Additional Services earned to date if termination occurs before or during the predesign, site analysis, or Schematic Design Phases; or .2 Ten percent of the total compensation for Basic and Additional Services earned to. date if termination occurs during the Design Development Phase; or .3 Five percent of the total compensation for Basic and Additional Services earned to date if termination occurs during any subsequent phase. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Unless otherwise provided, this Agreement shall be gov- erned by the law of the principal place of business of the Architect. 9.2 Terms in this Agreement shall have the same meaning as those in AIA Document A201, General Conditions of the Con- tract for Construction, current as of the date of this Agreement. 9.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall com- mence to run not later than either the date of Substantial Com- pletion for acts or failures to act occurring prior to Substantial Completion, or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. 9.4 The. Owner and Architect waive all rights against each other and against the contractors, consultants; agents and employees of the other for damages, but only to the extent cov- ered by property insurance during construction, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201; General Conditions of the Contract for Construction, current as of the date of this Agreement. The Owner and Architect each shall require similar waivers from their contractors, consultants and agents. 9.5 The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, succes- sors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. Neither Owner nor Architect shall assign this Agreement without the written con- sent of the other. 9.6 This Agreement represents the entire and integrated agree- ment between the Owner and Architect and supersedes all prior negotiations, representations or agreements, either writ- ten or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. 9.7 Nothing contained in this Agreement shall create a contrac- tual relationship with or a cause of.action in favor of a third party against either the Owner or Architect. 9.8 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or expo- sure of persons to hazardous materials in any form at the Project site, including but not limited to asbestos, asbestos products, . polychlorinated biphenyl (PCB) or other toxic substances. 9.9 The Architect shall have the right to include representa- tions of the design of the Project, including photographs of the exterior and interior, among the Architect's promotional and professional materials. The Architect's materials shall not include the Owner's confidential or proprietary information if . the Owner has previously advised the Architect in writing of AIA DOCUMENT 8141 • OWNER- ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIA® • ©1987 7 B141 -1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 WARNING: Unlicensed photocopying violates U.S. copyright laws and Is subject to legal prosecution. the specific information considered by the Owner to be- confi- dential or proprietary. The Owner shall provide professional credit for the Architect on the construction sign and in the pro- motional materials for the Project. ARTICLE 10 PAYMENTS TO THE ARCHITECT 10.1 DIRECT PERSONNEL EXPENSE 10.1.1 Direct Personnel Expense is defried as the direct salaries of the Architect's personnel engaged on the Project and the portion of the cost of their mandatory and customary con- tributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 10.2 REIMBURSABLE EXPENSES 10.2.1 Reimbursable Expenses are in addition to compensa- tion for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and con- sultants in the interest of the Project, as identified in the follow- ing Clauses. 10.2.1.1 Expense of transportation in connection with the Project; expenses in connection with authorized out -of -town travel; long - distance communications; and fees paid for secur- ing approval of authorities having jurisdiction over the Project. 10.2.1.2 Expense of reproductions, postage and handling of Drawings, Specifications and other documents. . 10.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 10.2.1.4 Expense of renderings, models and mock -ups requested by the Owner. 10.2.1.5 Expense of additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally carried by the Architect and Architect's consultants. 10.2.1.6 Expense of computer -aided design and drafting equipment time when used in connection with the Project. 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 10.3.1 An initial payment as set forth in Paragraph 11.1 is the minimum payment under this Agreement. 10.3.2 Subsequent payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to ser- vices performed within each phase of service, on the basis set forth in Subparagraph 11.2.2. 10.3.3 If and to the extent that the time initially established in Subparagraph 11.5.1 of this Agreement is exceeded or extended through no fault of the Architect, compensation for any ser- vices rendered during the additional period of time shall be computed in the manner set forth in Subparagraph 11.3.2. 10.3.4 When compensation is based on a percentage of Con- struction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are per- formed on those portions, in accordance with the schedule set forth in Subparagraph 11.2.2, based on (1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such por- tions of the Project. 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 10.4.1 Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Architect's statement of services ren- dered or expenses incurred. 10.5 PAYMENTS WITHHELD 10.5.1 No deductions shall be made from the Architect's com- pensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the Work other than those for which the Architect has been found to be liable. 10.6 ARCHITECT'S ACCOUNTING RECORDS 10.6.1 Records of Reimbursable Expenses and expenses per- taining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense shall be avail- able to the Owner or the Owner's authorized representative at mutually convenient times. ARTICLE 11 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows: 11.1 AN INITIAL PAYMENT of Zero Dollars (S shall be made upon execution of this Agreement and credited to the Owner's account at final payment. 11.2 BASIC COMPENSATION 11.2.1 FOR BASIC SERVICES, as described in Article 2, and any other services included in Article 12 as part of Basic Services, Basic Compensation shall be computed as follows: (insert basis of compensation, including stipulated sums, multiples or percentages, and identify phases to wbicb particular metbods of compensation apply, if necessary.) Basis of compensation shall be Phased Fixed Fee totaling $136,000.00. AIA DOCUMENT 8141 • OWNER- ARCHITECT AGREEMENT • FOURTEENTH EDITION • AIA®- • ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORKAVENUE, N.W., WASHINGTON, D.C. 20006 B141 -1987 8 WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. 11.2.2 Where compensation is based. on a stipulated sum or percentage of Construction Cost, progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable: (Insert additional phases as appropriate.) Master Planning Phase Pre - Design Phase Schematic Design Phase: Construction Documents Phase: Bidding or Negotiation Phase: Construction Phase: Total Basic Compensation:. 11.3 COMPENSATION FOR ADDITIONAL SERVICES Twelve percent (12%,Y Thirteen percent (13 %) Twenty —Two percent( 22 %) percent ( = = %) Thirty —One percent( 31 %) Four percent ( 4 %) Eighteen percent( 18 %) one hundred percent (100 %) 11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 3.2, compensation shall be com- puted as follows: On the basis of a Mutually Agreeable Fee. 11.3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 3 and 12, other than (1) Additional Project Representation, as described in Paragraph 3.2, and (2) services included in Article 12 as part of Basic Services, but excluding services of consultants, compensation shall be computed as follows: (Insert basis of compensation, including rates and/or multiples of Direct Personnel Expense for Principals and employees, and identify Principals and classify employees, if required. Identify specific services to u,bicb particular methods of compensation apply, if necessary) On the basis:of a Mutually Agreeeable Fee. 11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical and electrical engineering services and those provided under Subparagraph 3.4.19 or identified in Article 12 as part of Additional Services, a multiple of One . Hundred Ten ( 1 . 10 ) times the amounts billed to the Architect for such services. (Identify specific types of consultants in Article 12, if required.) 11.4 REIMBURSABLE EXPENSES 11.4.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 10.2, and any other items included in Article 12 as Reimbursable Expenses, a multiple of One Hundred Ten ( 1 . 10) times the expenses incurred by the Architect, the Architect's employees and consultants in the interest of the Project. 11.5 ADDITIONAL PROVISIONS 11.5.1 IF THE BASIC SERVICES covered by this Agreement have not been completed within eight ( 8 ) months of the date hereof, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as provided in Subparagraphs 10.3.3 and 11.3.2. 11.5.2 Payments are due and payable Thirty ( 30 ) days from the date of the Architect's invoice. Amounts unpaid Forty —Five ( 45 ) days after the invoice date shall bear interest at the rate entered below, or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (Insert rate of interest agreed upon.) One Percent (1%) per month. (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Arcbi- tect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal advice sbould be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) AIA DOCUMENT B141 • OWNER- ARCHITECT AGREEMENT • FOURTEENTH EDITION !b AIA® • ©1987 9 8141 -1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735.NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 WARNING:`, nlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. 11.5.3 The rates and multiples set forth for Additional Services shall be annually adjusted in accordance with normal salary review practices of the Architect, in the month of . April. ARTICLE 12 OTHER CONDITIONS OR SERVICES (Insert descriptions of olber services, identify Additional Services included within Basic Compensation and modifications to the payment and compensation terms included in this Agreement.) 12.1 Supplemental Conditions - ..Exhibit 'A'.. 12.2 General Conditions of Agreement — Exhibit 'B'. 12.3 Project Scope — Exhibit 'C'. This Agreement entered into as of the day and year First written above. OWNER (Signature) (Printed name and title) ARCHITECT (Signature) gN4tO L1405*4 � �p�il WC�tpO.L. (Printed name and title) ImCAUTION: You should sign an original AIA document which has this caution printed in red. An original assures that changes will not be obscured as may occur when documents are reproduced. AIA DOCUMENT 8141 - OWNER - ARCHITECT AGREEMENT - FOURTEENTH EDITION - AIA® - ©1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20005 0141 -1987 10 WARNING: Unlicensed photocopying violates U.S. copyright laws and Is subject to legal prosecution. • EXHIBIT A SUPPLEMENTAL CONDITIONS These supplemental conditions shall supersede and control over the Standard Form of Agreement between the Owner and the Architect (AIA Document B141 -1987) to the extent that there is conflict. Add the following to Article 2.2.1: The Architect shall recommend to the Owner its best alternative based on a review of the Owner's needs with regard to the Project, including, but not limited to, site evaluation, needs surveys, comparisons with other municipal projects, review of budgetary constraints and other preliminary investigations necessary for the Project. The Architect shall prepare a report specifying the Architect's findings, conclusions and recommendations with regard to the Project. 2. Article 2.4.2 shall be revised to read as follows: The Architect shall be responsible for the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract and the form of Agreement between the Owner and Contractor. 3. Article 2.4.4 shall be revised to read as follows: The Architect shall be responsible for gathering and submitting all necessary information and documentation as may be requested or required by governmental authorities having jurisdiction over the Project. 4. Article 2.5.1 shall be revised to read as follows: The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of construction cost, shall assist the Owner in obtaining competitive bids and prepare contracts for construction. Article 2.6.1 shall be revised as follows: The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the earlier of the issuance to the Owner of the final Certificate for Payment or 120 days after the date of Substantial Completion of the Work. 6. Article 2.6.2 shall be revised to read as follows: The Architect shall provide administration of the Contract for Construction as set forth below and pursuant to the Construction Documents as defined in Owner's Standard General Conditions of Agreement. Architect's Initials 1 Owner's Initial ® 7. Article 2.6.5 shall be revised to read as follows: The Architect shall visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing to become familiar with the progress and quality of the Work completed and to determine if the Work is being performed in the Architect's opinion in a manner indicating that the Work when completed will be in accordance with the Contract Documents. The Architect shall visit the site to verify each payment requested by the Contractor. On the basis of on -site observations, the Architect shall keep the Owner informed of the progress and quality of the Work and shall endeavor to guard against defects and deficiencies in the Work. The inspections required in this paragraph shall entail the visual observation of the construction to permit the Architect to render his professional opinion as to whether the Contractor is performing the Work in a manner indicating that, when completed, the Work will be in accordance with the Contract Documents. Such observations shall not be relied upon by the Contractor as acceptance of the Work, nor shall they relieve any party from fulfillment of all of their respective obligations and responsibilities, whether contractual or otherwise. 8. The last sentence of Article 2.6.6 shall be revised to read as follows: The Architect shall not have control over or charge of the acts or omissions of the Owner or Contractor or their respective subconsultants, agents or employees. 9. Delete Article 2.6.8. 10, Article 2.6.13 shall be revised to read as follows: The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data for the Owner's approval and execution as part of the basic services if such changes are caused, in whole or in part, by the Architect's services rendered pursuant to this agreement or minor in character as determined by the Owner. For all other Change Orders and Construction Change Directives, the Architect shall prepare the same together with all supporting documentation and data if authorized or confirmed in writing by the Owner as provided in Paragraphs 3.1 and 3.3, for the Owner's approval and execution in accordance with the Contract Documents. The Architect may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents. 11. The last sentence of Article 2.6.16 shall be revised to read as follows: When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both Owner and Contractor, shall not show partiality to either, and shall be liable only for negligent interpretations or decisions. 12. Delete articles 2.6.17 and 2.6.19 ® Architect's Initials 2 Owner's Initial ® 13. Add the following articles: 2.6.20 The Architect shall exercise usual and customary professional care in the preparation of drawings and his designation of selection of materials and equipment and the selection and supervision of his personnel and the performance of its services pursuant to this contract to meet the recognized industry standards. 2.6.21 The Architect shall procure and maintain at his sole co.st and expense for the duration of the Contract, insurance against claims for injures to person or damages to property which may arise from or in connection with the performance of the Work hereunder by the Architect, his agents, representatives, volunteers, employees or subconsultants. 2.6.21.1 The Architect's insurance coverage shall be primary insurance with respect to the Owner, his officials, employees and agents. Any insurance or self - insurance maintained by the Owner, his officials, employees or agents shall be considered in excess of the Architect's insurance and shall not contribute to it. Further, the Architect shall include all subconsultants, agents and assigns as additional insureds under its policy or shall furnish separate certificates and endorsements for each such person or entity. All coverages for subconsultants and assigns shall be subject to all of the requirements stated herein. 2.6.21.2 The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this Agreement: a. Commercial General Liability • General Aggregate: $1,000,000 • Products & Completed Operations Aggregate: $1,000,000 • Personal & Advertising Injury: $1,000,000 • Per Occurrence: $500,000 • Fire Damage: $500,000 • Coverage shall be at least as broad as ISO CG 00 01 10 93 • No coverage shall be deleted from standard policy without notification of individual exclusions being attached for review and acceptance. b. Business Automobile Policy ■ Combined Single Limits: $500,000 or BI per person: $100,000 BI per accident: $300,000 PD per accident: $100,000 ■ Coverage for "Any Auto" ® Architect's Initials_ 3 Owner's Initial ® C. Errors and Omissions • Limit: $250,000 per claim and in the aggregate. • For all architects, engineers, and /or design companies. • Claims -made form is acceptable. • Coverage will be in force for three (3) years after construction of the Project is completed. 2.6.21.3 The following shall be applicable to all policies of insurance required herein. a. Insurance carrier must have an A.M. Best Rating of AXIII or better. b. Only insurance carriers licensed and admitted to do business in the State of Texas will be accepted. C. Liability policies must be on occurrence form.. Errors and Omissions can be on claims -made form. d. Each insurance policy shall be endorsed to state that coverage. shall not be suspended, voided, canceled or reduced in coverage or in limits except after sixty (60) days' prior written notice by certified mail, return receipt requested, has been given to the Owner. e. The Owner, its officers, agents and employees are to be added as Additional Insureds to all liability policies, with the exception of the Errors and Omissions Policy required herein. f. Upon request and without cost to the Owner, certified copies of all insurance polices and /or certificates of insurance shall be furnished to the Owner. g. Upon request and without cost to the Owner, loss runs (claims listing) of any and /or all insurance coverages shall be furnished to the Owner. h. All insurance required herein shall be secured and maintained in a company or companies satisfactory to the Owner, and shall be carried in the name of the Architect. The Architect shall provide copies of insurance policies required hereunder to the Owner on or before the effective date of this Agreement. 14. Article 3.1.1 shall be revised to read as follows: 0 Architect's Initials_ 4 Owner's Initial ® The services described in this Article 3 are not included in Basic Services unless so identified in Article 12 or elsewhere in these Supplementary Conditions, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Paragraphs 3.2, 3.3 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. 15. Add to the end of Article 3.3.3 the following: "except for changes caused by errors and /or omissions by the Architect." 16. Add to the end of Article 3.3.7 the following: "except for claims caused by errors and /or omissions by the Architect and Architect's failure to provide timely response to contractor's submittals." 17. Article 3.4.18 shall be revised to read as follows: Providing services after issuance to the Owner of the final Certificate for Payment or in the absence of a final Certificate for Payment, more than 120 days after the date of Substantial Completion of the Work. 18. Add the following to Article 4.4: The City Engineer is the Owner's authorized representative to the Architect with respect to this project. However, the City Manager and /or the City Council must approve change orders affecting the contract sum. 19. Change the first sentence of Article 4.5 to read as follows: The Owner shall have the Architect furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project and a written legal description of the site. 20. Add the following to Article 4.5: To the extent that the Owner employs a geotechnical engineer as requested by the Architect or otherwise has surveys describing physical characteristics, legal descriptions, legal limitations and utility locations for the site of the Project, the Owner shall provide the same. The Architect may rely on the information so provided; however, the Owner makes no representation as to the accuracy and completeness of any such information provided. 21. Change Article 4.9 to read as follows: The services, information, and reports required by Paragraphs 4.5 through 4.8 shall be furnished at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof. Surveys shall be provided by the Architect and shall be compensated under reimbursable expenses per Article 11.4. 22. Article 5.1.2 shall be revised to read as follows: Architect's Initials 5 Owner's Initial ® The Construction Cost shall include the costs using the prevailing wage rates as established by the Owner and the current market rates of material and equipment to be furnished, plus a reasonable allowance for Contractor's overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction. 23. Article 6,1 shall be revised to read as follows: All Architect's designs and work products relating to the Project, including, but not limited to, original drawings, specifications, investigations, studies and other documents completed shall remain the property of Architect; provided, however, the Architect hereby grants to the Owner a license to use the designs and work products in connection with the construction, reconstruction, renovation, repair, use and occupancy of the Project without additional compensation. Provided further that in the event the Owner uses said designs and work products without the Architect being retained to provide professional services in relation to the said use, the Owner does release the Architect from any liability which may result from the subsequent use thereof. The Architect shall provide the Owner with a complete set of transparencies of the designs and plans for subsequent reproduction, at the Owner's expense, within three (3) days of receipt by Architect of the Owner's written request for the same. 24. - Article 7 -shall be- deleted -in its entirety. 25. The following shall be deleted from Article 8.6: "and all Termination Expenses as defined in Paragraph 8.7." 26. Article 8.7 shall be revised to read as follows: The Owner may at any time terminate the Project for convenience. At such time, Owner shall notify the Architect who shall cease work immediately upon receipt of such notice. The Architect shall be compensated within thirty (30) days of Owner's receipt of an invoice for all unpaid services performed and reimbursable expenses incurred prior to termination. 27. Article 9.1 shall be revised to read as follows- This Agreement shall be governed by the laws of the principal place of business of the Owner. 28. Article 9.2 shall be revised to read as follows: Terms in this Agreement shall have the same meaning as those contained in the Owner's General Conditions of Agreement for Construction. 29. Delete Articles 9.3 and 9.4 in their entirety. 30. The following shall be added after the last sentence of Article 9.8: Architect's Initials �- 6 Owner's Initial ® Should the Architect discover, notice or become aware of hazardous materials in any form at the Project site at any time throughout the term of this Agreement, the Architect shall immediately notify the Owner. 31. Delete the last sentence of Article 9.9. 32. Add the following articles: 9.10 All parties agree that should any provision of this agreement be determined to be invalid or unenforceable, such determination shall not affect any other term of this Agreement, which shall continue in full force and effect. 9.11 The relationship of the Architect to the Owner shall be that of an independent contractor. 9.12 Both the Architect and the Owner agree that the proper venue for any dispute arising under this Agreement is Baytown, Harris County, Texas. 33. Add the following as an introductory prepositional phrase to Article 10.1.1: "In calculating reimbursable expenses and /or additional services requested in writing by the Owner," 34. Delete Articles 10.2.1.5 and 10.2.1.6. 35. Add the following as Article 10.2.2: Before the Owner shall be liable for any of the above - referenced reimbursable expenses, except as otherwise provided in this Article, the Architect must obtain prior written approval of the Owner or the Owner's representative of any expense that exceeds $1,500 per month or $12,000, for which the Architect seeks reimbursement. The Owner agrees that the approval of expenses will not be unreasonably withheld. Before the Owner shall be liable, all travel must be approved by the Owner before said travel. 36. Article 10.3.2 shall be revised to read as follows: Subsequent payments for Basic Services shall be made 30 days after the Architect submits a detailed invoice for the services actually performed and a report of the progress of the Project and, where applicable, such payment shall be in proportion to the services performed within each phase of service on the basis set forth in Subparagraph 11.2.2. 37. Article 10.3.3 shall be revised to read as follows: If and to the extent that the time initially established in Subparagraph 11.5.1 of this Agreement is exceeded or extended through no fault of the Architect and not mutually extended by both parties, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Subparagraph 11.3.2. ® Architect's Initials_ 7 Owner's Initial ® 38. Article 10.4.1 shall be revised to read as follows: Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made within thirty (30) days after the presentation of the Architect's statement of the services rendered or the expenses incurred. 39. Add the following to Article 11.5.2: Interest will accrue at a rate of I% per month on delinquent amounts. 40. There shall be no right to arbitration under this agreement and all references herein to the same are hereby deleted. 41. Add the following to Article 12: THE ARCHITECT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND THE CITY, ITS OFFICERS, AGENTS AND EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY 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 ARISING OUT OF, OR IN CONNECTION WITH THE SERVICES PERFORMED BY THE ARCHITECT UNDER THIS CONTRACT WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT OR SOLE NEGLIGENCE OF THE ARCHITECT, ITS OFFICERS, AGENTS AND EMPLOYEES. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE ARCHITECT AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE ARCHITECT TO INDEMNIFY AND PROTECT THE CITY FROM THE CONSEQUENCES OF THE ARCHITECT'S NEGLIGENCE, WHERE THAT NEGLIGENCE IS THE SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH OR PROPERTY DAMAGE THAT IS CAUSED BY OR RESULTS FROM THE Architect's Initials 8 Owner's Initial v NEGLIGENCE OF THE OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE CITY BY REASON OF ANY OF THE ABOVE, THE ARCHITECT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE CITY AND THE ARCHITECT. 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. The Architect assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges the Owner, its ofrcers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether they be either of the parties hereto, .their employees, or other third parties) and any loss of or damage to property (whether the property be that of either of the parties hereto, their employees, or other third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Architect's work to be performed hereunder. This release shall apply with respect to. the Architect's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. 42. The fixed limit of Construction Cost is $1,100,000.00. There is a contingency amount built into the fixed limit of construction costs. 43. Article 2.2 shall be entitled Pre - Design Phase. 44. Article 2.3 shall be revised to read as follows: 2.3 SCHEMATIC DESIGN 2.3.1 Based on the mutually agreed -upon program schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components and describing the size and character of the Project as to architectural, mechanical and electrical systems, materials and such other elements as may be appropriate. ® Architect's Initials 9 Owner's Initial 45. Add the following to Article 12: 12.4 MASTER PLANNING The Architect shall: A. conduct up to four meetings with the Owner to establish programmatic guidelines including design objectives, limitations and criteria; development of initial approximate gross facility area and space requirements; space relations; number of personnel; flexibility and expandability; security criteria; and communication requirements; B. conduct an existing facilities survey including research of existing documents and field verification to determine their accuracy; C. prepare floor plan study and pertinent descriptive text for conversion of programmed requirements to net area requirements, internal flow patterns, general space allocations, expandability and flexibility; D. present our findings to Owner and revise as appropriate to Owner's approval. x:lcity of baytownlcontractlexhb.a.doc DL 20 November 2001 Architect's Initials 10 Owner's Initial n I ] EXHIBIT B GENERAL CONDITIONS OF AGREEMENT 1. DEFINITIONS OF TERMS .1.01- OWNER, CONTRACTOR AND ARCHITECT. The OWNER, the CONTRACTOR and the ARCHITECT are those persons or organizations identified as such in the Agreement and are referred to throughout the Contract Documents as if singular in number and masculine in gender. The term ARCHITECT means the ARCHITECT or his duly authorized representative. The ARCHITECT shall be understood to be the ARCHITECT of the OWNER, and nothing contained in the Contract Documents shall create any contractual or agency relationship between the ARCHITECT and the CONTRACTOR. 1.02 CONTRACT DOCUMENTS. The Contract Documents shall consist of the Notice to Contractors (Advertisement), Special Conditions (Instructions to Bidders), Proposal, signed Agreement, Performance and Payment Bonds (when required), Special Bonds (when required), Special Addenda, Special Provisions, General Conditions of the Agreement, Scope of Work, Technical Specifications, Plans, and all modifications thereof incorporated in any of the documents before the execution of the agreement. The Contract Documents are complementary, and what is called for by any one shall be as binding as if called for by all. In case of conflict between any of the Contract Documents, priority of interpretation shall be in the following order: Signed Agreement, Special Provisions, Performance and Payment Bonds, Special Bonds (if any), Special Addenda, Proposal, Special Conditions of Agreement, Notice to Contractors, Scope of Work, Technical Specifications, Plans, and General Conditions of Agreement. 1.03 SUB - CONTRACTOR. The term Sub - Contractor, as employed herein, includes only those having a direct contract with the CONTRACTOR and it includes one who furnishes material worked to a special design according to the plans or specifications of this work, but does not include one who merely furnishes material not so worked. 1.04 WRITTEN NOTICE. Written notice shall be deemed to have been duly served if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered 1 ® mail to the last business address known to him who gives the notice. 1.05 WORK. The CONTRACTOR shall provide and pay for all materials, supplies and machinery, equipment, tools, superintendence, labor, services, insurance, and all water, light, power, fuel, transportation and other facilities necessary for the execution and completion of the work covered by the contract documents. Unless otherwise specified, all materials shall be new and both workmanship and materials shall be of a good quality. The CONTRACTOR shall, if required, furnish satisfactory evidence as to the kind and quality of materials. Materials or work described in words which so applied have a well known technical or trade meaning shall be held to refer to such recognized standards. 1.06 EXTRA WORK. The term "Extra Work" as used in this contract shall be understood to mean and include all work that may be required by the ARCHITECT or OWNER to be done by the CONTRACTOR to accomplish any change, alteration or. addition to the work shown upon the plans, or reasonably implied by the specifications, and not covered by the CONTRACTOR'S Proposal, except as provided under "Changes and Alterations ", herein. 1.07 WORKING DAY. A "Working Day" is defined as any day not including Saturdays, Sundays, or any legal holidays, in which weather or other conditions, not under the control of the CONTRACTOR, will permit construction of the principal units of the work for a period of not less than seven (7) hours between 7 :00 a.m. and 6 :00 p.m. 1.08 CALENDAR DAY. "Calendar Day" is any day of the week or month, no days being excepted. 1.09 SUBSTANTIALLY COMPLETED. By the term "substantially completed" is meant that the structure has been made suitable for use or occupancy or the facility is in condition to serve its intended purpose, but still may require minor miscellaneous work and adjustment. 2. RESPONSIBILITIES OF THE ARCHITECT AND THE CONTRACTOR 2.01 OWNER - ARCHITECT RELATIONSHIP. The ARCHITECT will be the OWNER'S representative during construction. The duties, responsibilities and limitations of authority of the ARCHITECT ® as the OWNER'S representative during construction are as set forth in the Contract Documents and shall not be extended or 2 ® limited without written consent of the OWNER and ARCHITECT. The ARCHITECT will advise and consult with the OWNER, and all of OWNER'S instructions to the CONTRACTOR shall be issued through the ARCHITECT. 2.02 SITE VISITS BY ARCHITECT. The ARCHITECT shall ,make periodic visits to the site to familiarize himself generally with the progress of the executed work and to determine if such work generally meets the essential performance and design features and the technical and functional engineering requirements of the Contract Documents; provided and except, however, that the ARCHITECT shall not be responsible for making any detailed, exhaustive, comprehensive or continuous on -site inspection of the quality or quantity of the work or be in any way responsible, directly or indirectly, for the construction. means, methods, techniques, sequences, quality, procedures, programs, safety precautions or lack of same incident thereto or in connection therewith. Notwithstanding any other provision of this agreement or any other Contract Document, the ARCHITECT shall not be in any way responsible or liable for any acts, errors, omissions or negligence of the CONTRACTOR, any subcontractor or any of the CONTRACTOR'S or subcontractor's agents, servants or employees or any other person, firm or corporation performing or attempting to perform any of the work. 2.03 PAYMENTS FOR WORK. The ARCHITECT shall review CONTRACTOR'S applications for payment and supporting data, determine the amount owed to the CONTRACTOR and approve, in writing, payment to CONTRACTOR in such amounts; such approval of payment to CONTRACTOR constitutes a representation to the OWNER of ARCHITECT'S professional judgment that the work has progressed to the point indicated to the best of his knowledge, information and belief, but such approval of an application for payment to CONTRACTOR shall not be deemed as a representation by ARCHITECT that ARCHITECT has made any examination to determine how or for what purpose CONTRACTOR has used the moneys paid on account of the Contract price. 2.04 INITIAL DETERMINATIONS. The ARCHITECT initially shall determine all claims, disputes and other matters in question between the CONTRACTOR and the OWNER relating to the execution or progress of the work or the interpretation of the Contract Documents and the ARCHITECT'S decision shall be rendered in writing within a reasonable time. 2.05 OBJECTIONS. In the event the ARCHITECT renders any decision which, in the opinion of either party hereto, is not in 3 accordance with the meaning and intent of this contract, either party may file with the ARCHITECT within thirty days his written objection to the decision. 2.06 LINES AND GRADES. Unless otherwise specified, all lines and grades shall be furnished by the ARCHITECT or his representative. Whenever necessary, construction work shall be suspended to permit performance of this work, but such suspension will be as brief as practicable and the CONTRACTOR shall be allowed no extra compensation therefor. The CONTRACTOR shall give the ARCHITECT ample notice of the time and place where lines and grades will be needed. All stakes, marks, etc., shall be carefully preserved by the CONTRACTOR, and in case of careless destruction or removal by him or his employees, such stakes, marks, etc., shall be replaced at the CONTRACTOR'S expense. 2.07 CONTRACTOR'S DUTY AND SUPERINTENDENCE. The CONTRACTOR shall give. adequate attention to the faithful prosecution and completion of this contract and shall keep on the work, during its progress, a competent superintendent and any necessary assistants. The superintendent shall represent the CONTRACTOR in his absence and all directions given to him shall be as binding as if given to the CONTRACTOR. The CONTRACTOR is and at all times shall remain an independent contractor, solely responsible for the manner and method of completing his work under this contract, with full power and authority to select the means, method and manner of performing such work, so long as such methods do not adversely affect the completed improvements,.the OWNER and ARCHITECT being interested only in the result- obtained and conformity of such completed improvements to the plans, specifications and contract. Likewise, the CONTRACTOR shall be solely responsible for the safety of himself, his employees and other persons, as well as for the protection of the safety of the improvements being erected and the property of himself or any other person, as a result of his operations hereunder. Architect's construction drawings and specifications as well as any additional information concerning the work to be performed passing from or through the ARCHITECT shall not be interpreted as requiring or allowing CONTRACTOR to deviate from the plans and specifications, the intent of such drawings, specifications and any other such instructions being to define with particularity the agreement of the parties as to the work the CONTRACTOR is to perform. CONTRACTOR shall be fully and completely liable, at E his own expense, for design, construction, installation and use, or non -use, of all items and methods incident to performance of the contract, and for all loss, damage or injury incident thereto, either to person or property, including, without limitation, the adequacy of all temporary supports, shoring, bracing, scaffolding, machinery or equipment, safety precautions or devices, and similar items or devices used by him during construction. Any review of work in process, or any visit or observation during construction, or any clarification of plans and specifications, by the ARCHITECT, or any agent, employee, or representative of either of them, whether through personal observation on the project site or by means of approval of shop drawings for temporary construction or construction processes, or by other means or method, is agreed by the CONTRACTOR to be for the purpose of observing the extent and nature of work completed or being performed,, as measured against the drawings and specifications constituting the contract, or for the purpose of enabling CONTRACTOR to more fully understand the plans and specifications so that the completed construction work will conform thereto, and shall in no way relieve the CONTRACTOR from full and complete responsibility for the proper performance of his work on the project, including but without limitation the propriety of means and methods of the CONTRACTOR in performing said contract, and the adequacy of any designs, plans or other facilities for accomplishing such performance. Deviation by the CONTRACTOR from plans and specifications that may have been in evidence during any such visitation or observation by the ARCHITECT, or any of his representatives, whether called to the CONTRACTOR'S attention or not shall in no way relieve CONTRACTOR from his responsibility to complete all work in accordance with said plans and specifications. 2.08 CONTRACTOR'S UNDERSTANDING. It is understood and agreed that the CONTRACTOR has, by careful examination, satisfied himself as to the nature and location of the work, the conformation of the ground, the character, quality and quantity of the materials to be encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the work, the general and local conditions, and all other matters which can in any way affect the work under this contract. No verbal agreement or conversation with any officer, agent or employee of the OWNER or ARCHITECT either before or after the execution of this contract, shall affect or modify any 40 of the terms or obligations herein contained. 5 2.09 CHARACTER OF WORKMEN. The CONTRACTOR agrees to employ only orderly and competent men, skillful in the performance of the type of work required under this contract, to do the work; and agrees that whenever the ARCHITECT or OWNER shall inform him in writing that any man or men on the work are, in his opinion, incompetent, unfaithful or disorderly, such man or men shall be discharged from the work and shall not again be employed on the work without the ARCHITECT'S written consent. 2.10 CONTRACTOR'S BUILDINGS. The building of structures for housing men, or the erection of tents or other forms or protection, will be permitted only at such places as the ARCHITECT shall direct, and the sanitary conditions of the grounds in or about such structures shall at all times be maintained in a manner satisfactory to the ARCHITECT. 2.11 SANITATION. Necessary sanitary conveniences for the use of laborers on the work, properly secluded from public observation, shall be constructed and maintained by the CONTRACTOR in such manner and at such points as shall be approved by the ARCHITECT, and their use shall be strictly enforced. 2.12 SHOP DRAWINGS. The CONTRACTOR shall submit to the ARCHITECT, with such promptness as to cause no delay in his own work or in that of any other Contractor, four checked copies, unless otherwise specified, of all•shop and /or setting drawings and schedules required for the work of the various trades, and the ARCHITECT shall pass upon them with reasonable promptness, making desired corrections. The CONTRACTOR shall make any corrections required by the ARCHITECT, file with him two corrected copies and furnish such other copies as may be needed. The ARCHITECT'S approval of such drawings or schedules shall not relieve the CONTRACTOR from responsibility for deviations from drawings or specifications, unless he has in writing called the ARCHITECT'S attention Oto such deviations at the time of submission, nor shall it relieve him from responsibility for errors of any sort in shop drawings or schedules. It shall be the CONTRACTOR'S responsibility to fully and completely review all shop drawings to ascertain their effect on his ability to perform the required contract work in accordance with the plans and specifications and within the contract time. Such review by the ARCHITECT shall be for the sole purpose of determining the sufficiency of said drawings or schedules to result in finished improvements in conformity with the plans and specifications, and shall not relieve the CONTRACTOR of his duty 0 as an independent contractor as previously set forth, it being expressly understood and agreed that the ARCHITECT does not assume any duty to pass upon the propriety or adequacy of such drawings or schedules, or any means or methods reflected thereby, in relation to the safety of either person or property during CONTRACTOR'S performance hereunder. 2.13 PRELIMINARY APPROVAL. The ARCHITECT shall not have the power to waive the obligations of this contract for the furnishing by the CONTRACTOR of good material, and of his performing good work as herein described, and in full accordance with the plans and specifications. No failure or omission of the ARCHITECT to discover, object to or condemn any defective work or material shall release the CONTRACTOR from the obligations to fully and properly perform the contract, including without limitations, the obligation to at once tear out, remove and properly replace the same at any time prior to final acceptance upon the discovery of said defective work or material; provided, however, that the ARCHITECT shall, upon request of the CONTRACTOR, inspect and accept or reject any material furnished, and in event the material has once been accepted by the ARCHITECT, such acceptance shall be binding on the OWNER unless it can be clearly shown that such material furnished does not meet the specifications for this work. Any questioned work may be ordered taken up or removed for re- examination, by the ARCHITECT, prior to final acceptance, and if found not in accordance with the specifications for said work, all expense of removing, re- examination and replacement shall be borne by the CONTRACTOR, otherwise the expense thus incurred shall be allowed as EXTRA WORK, and shall be paid for by the OWNER; provided that, where inspection or approval is specifically required by the specifications prior to performance of certain work, should the CONTRACTOR proceed with such work without requesting prior inspection or approval h.e shall bear all expense of taking up, removing, and replacing this work if so directed by the ARCHITECT. 2.14 DEFECTS AND THEIR REMEDIES. It is further agreed that if the work or any part thereof, or any material brought on the site of the work for use in the work or selected for the same, shall be deemed by the ARCHITECT as unsuitable or not in conformity with the specifications, the CONTRACTOR shall, after receipt of written notice thereof from the ARCHITECT, forthwith remove such material and rebuild or otherwise remedy such work so that it shall be in full accordance with this contract. 7 2.15 CHANGES AND ALTERATIONS. The CONTRACTOR further agrees that the OWNER may make such changes and alterations as the OWNER may see fit, in the line, grade, form, dimensions, plans or materials for the work herein contemplated, or any part thereof, either before or after the beginning of the construction, without affecting the validity of this contract and the accompanying Performance and Payment Bonds. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for a claim for damages, or anticipated profits on the work that may be dispensed with, except as provided for unit price items under Section 5 "Measurement and Payment ". If the amount of work is increased, and the work can fairly be classified under the specifications, such increase shall be paid for according to the quantity actually done and at the unit price, if any, established for such work under this contract, except as provided for unit price items under Section 5 "Measurement and Payment "; otherwise, such additional work shall be paid for as provided under Extra Work. In case the OWNER shall.make such changes or alterations as shall make useless any work already done or material already furnished or used in said work, then the OWNER shall recompense the CONTRACTOR for any material or labor so used, and for any actual loss occasioned by such change, due to actual expenses incurred in preparation for the work as originally planned. 3. GENERAL OBLIGATIONS AND RESPONSIBILITIES 3.01 KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE. The ARCHITECT shall furnish the CONTRACTOR with an adequate and reasonable number of copies of all plans and specifications without expense to him, and the CONTRACTOR shall keep one copy of the same constantly accessible on the work, with the latest revisions noted thereon. 3.02 OWNERSHIP OF DRAWINGS. All drawings, specifications and copies thereof furnished by the ARCHITECT shall not be reused on other work,,and, with the exception of the signed contract sets, are to be returned to him on request, at the completion of the work. All models are the property of the OWNER. 3.03 ADEQUACY OF DESIGN. It is understood that the OWNER believes it has. employed competent engineers and designers. It is, therefore, agreed that the OWNER shall be responsible for the adequacy of the design, sufficiency of the Contract Documents, the safety of the structure and the practicability of the operations of the completed project; provided the CONTRACTOR has complied with the requirements of the said Contract Documents, all approved modifications thereon, and additions and alterations thereto approved in writing by the OWNER. The burden of proof of such compliance shall be upon the CONTRACTOR to show that he has complied with the said requirements of the Contract Documents, approved modifications thereof and all approved additions and alterations thereto. 3.04 RIGHT OF ENTRY. The OWNER reserves the right to enter the property or location on which the works herein contracted for are to be constructed or installed, by such agent or agents as he may elect, for the purpose of inspecting the work, or for the purpose of constructing or installing such collateral work as said OWNER may desire. 3.05 COLLATERAL CONTRACTS. The OWNER agrees to provide by separate contract or otherwise, all labor and material essential to the completion of the work specifically excluded from this contract, in such manner as not to delay the progress of the work, or damage said CONTRACTOR, except where such delays are specifically mentioned elsewhere in the Contract Documents. 3.06 DISCREPANCIES AND OMISSIONS. It is further agreed that it is the intent of this contract that all work must be done and all material must be furnished in accordance with the generally accepted practice, and in the event of any discrepancies between the separate contract documents, the priority of interpretation defined under "Contract Documents" shall govern. In the event that there is still any doubt as to the meaning and intent of any portion of the contract, specifications or drawings, the ARCHITECT shall define which is intended to apply to the work. 3.07 EQUIPMENT, MATERIALS AND CONSTRUCTION PLANT. The CONTRACTOR shall be responsible for the care, preservation, conservation, and protection of all materials, supplies, machinery, equipment, tools, apparatus, accessories, facilities, all means of construction, and any and all parts of the work, whether the CONTRACTOR has been paid, partially paid, or not paid for such work, until the entire work is completed and accepted. 3.08 DAMAGES. In the event the CONTRACTOR is damaged in the course of the completion of the work by the act, neglect, omission, mistake or default of the OWNER, or of the ARCHITECT, or of any other CONTRACTOR .employed by the OWNER upon the work, ® thereby causing loss to the CONTRACTOR, the OWNER agrees that he will reimburse the CONTRACTOR for such loss. In the event the 7 OWNER is damaged in the course of the work by the act, negligence, omission, mistake or default of the CONTRACTOR, or should the CONTRACTOR unreasonably delay the progress of the work being done by others on the job so as to cause loss for which the OWNER becomes liable, then the CONTRACTOR shall reimburse the OWNER for such loss. 3.09 PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC. The CONTRACTOR shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the "Manual of Accident Prevention in Construction" of the Associated General Contractors of America except where incompatible with Federal, State, or Municipal laws or regulations. The CONTRACTOR shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety devices. The safety precautions actually taken and their adequacy shall be the sole responsibility of the CONTRACTOR, acting at his discretion as an independent contractor. 3.10 PERFORMANCE AND PAYMENT BONDS. Unless otherwise specified, it is further agreed by the parties to the Contract that the CONTRACTOR will execute separate performance and payment bonds, each in the sum of one hundred (100) percent of the total contract price, in standard forms for this purpose, guaranteeing faithful payment to all persons supplying labor and materials or furnishing him any equipment in the execution of the Contract, and it is agreed that this Contract shall not be in effect until such performance and payment bonds are furnished and approved by the OWNER. Unless otherwise approved in writing by the OWNER, the surety company underwriting the bonds shall be acceptable according to the latest list of companies holding certificates of authority from the Secretary of Treasury of the United States. Unless otherwise specified, the cost of the premium for the performance and payment bonds shall be included in the CONTRACTOR'S proposal. 3.11 LOSSES FROM NATURAL CAUSES. Unless otherwise specified, all loss or damage to the CONTRACTOR arising out of the nature of the work to be done, or from the action of the elements, or from any unforeseen circumstance in the prosecution of the same, 10 or from unusual obstructions or difficulties which may be encountered in the prosecution of the work, shall be sustained and borne by the CONTRACTOR at his own cost and expense. 3.12 PROTECTION OF ADJOINING PROPERTY. The said CONTRACTOR shall take proper means to protect the adjacent or adjoining property or properties in any way encountered, which might be injured or seriously affected by any process of construction to be undertaken under this Agreement, from any damage or injury by reason of said process of construction; and he shall be liable for any and all claims for such damage on account of his failure to fully protect all adjoining property. CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND, THE OWNER, ARCHITECT, AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES, 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 ATTORNEYS' FEES FOR DAMAGE TO ANY ADJACENT OR ADJOINING PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY CONTRACTOR UNDER THIS CONTRACT, WHERE SUCH DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE OWNER OR ARCHITECT, AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND DEFEND THE OWNER AND /OR ARCHITECT FROM THE CONSEQUENCES OF THE OWNER'S AND /OR ARCHITECT'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE OWNER OR ARCHITECT UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. 3.13 PROTECTION AGAINST CLAIMS OF SUB - CONTRACTORS, LABORERS, MATERIALMEN AND FURNISHERS OF MACHINERY, EQUIPMENT AND SUPPLIES. CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND, THE OWNER, ARCHITECT, AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES, FROM AND AGAINST ANY ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS' FEES FOR ANY AND ALL DEMANDS OF SUB - CONTRACTORS, LABORERS, WORKMEN, MECHANICS, MATERIALMEN AND FURNISHERS OF MACHINERY AND PARTS THEREOF, EQUIPMENT, POWER TOOLS, AND ALL SUPPLIES, INCLUDING COMMISSARY, INCURRED IN THE FURTHERANCE OF THE PERFORMANCE OF THIS CONTRACT, REGARDLESS OF WHETHER SUCH CLAIMS OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE 0 OWNER AND /OR ARCHITECT, AND ANY OTHER PERSON OR ENTITY. IT IS 11 THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND DEFEND THE OWNER AND ARCHITECT FROM THE CONSEQUENCES OF THE OWNER'S AND /OR ARCHITECT'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF THE OWNER OR ARCHITECT UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. When so desired by the OWNER, the CONTRACTOR shall furnish satisfactory evidence that all obligations of the nature hereinabove designated have been paid, discharged or waived. If the CONTRACTOR fails to do so, then the OWNER may at the option of the CONTRACTOR either pay directly any unpaid bills, of which the OWNER has written notice, or withhold from the CONTRACTOR'S unpaid compensation a sum of money deemed reasonably sufficient to liquidate any and all such lawful claims until satisfactory evidence is furnished that all liabilities have been fully discharged, whereupon payments to the CONTRACTOR shall be resumed in full, in accordance with the terms of this contract, but in no event shall the provisions of this sentence be construed to impose any obligation upon the OWNER by either the CONTRACTOR or his Surety. 3.14 PROTECTION AGAINST ROYALTIES OR PATENTED INVENTION. The CONTRACTOR shall pay all royalties and license fees, and shall provide for the use of any design, device, material or process covered, by letters patent or copyright by suitable legal agreement with the patentee or owner. CONTRACTOR warrants that the products hereby incorporated into the project and /or any product used in association with the project does not infringe upon or violate any patent, copyright, trade secret or any other proprietary right of any third party; in the event of any claim by any third party against the OWNER, ARCHITECT or any of its officers, agents and /or employees, the OWNER or ARCHITECT shall notify CONTRACTOR and CONTRACTOR SHALL DEFEND SUCH CLAIM, IN THE OWNER'S AND /OR ARCHITECT'S NAME, BUT AT THE CONTRACTOR'S EXPENSE, AND SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND THE OWNER AND ARCHITECT AND THEIR OFFICERS, AGENTS, AND ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY EITHER OF THEM FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING, BUT NOT LIMITED TO, ALL EXPENSES OF LITIGATION, COURT COSTS AND ATTORNEYS' FEES, FOR INJURY, DEATH OR DAMAGE TO ANY THIRD PARTY, ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT(S) USED IN THE PERFORMANCE OF 12 THIS CONTRACT AND REGARDLESS OF WHETHER SUCH CLAIM BY AND ANY RESULTING INJURY, DEATH OR DAMAGE TO THIRD PARTIES IS CAUSED IN PART BY THE ACTS AND /OR OMISSIONS OF THE OWNER AND /OR ARCHITECT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND DEFEND THE OWNER AND ARCHITECT FROM THE CONSEQUENCES OF THE OWNER'S AND /OR ARCHITECT'S ACTS AND /OR OMISSIONS, WHERE THE OWNER'S OR- ARCHITECT'S ACTS AND /OR OMISSIONS, WHERE THE OWNER'S OR ARCHITECT'S ACTS AND /OR OMISSIONS ARE THE CONCURRING CAUSE OF THE INFRINGEMENT UPON OR VIOLATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT AND ANY RESULTING INJURY, DEATH OR DAMAGE OF ANY THIRD PARTY IN CONNECTION WITH THE PRODUCTS PROVIDED, INCORPORATED, OR USED IN THE PROJECT UNDER THIS CONTRACT. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INFRINGEMENT UPON OR VIOLATION OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHTS AND RESULTING INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE ACTS AND /OR OMISSIONS OF THE OWNER OR ARCHITECT UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. If the material or process specified or required by the OWNER is an infringement, the CONTRACTOR shall be responsible for such loss unless he promptly gives such information to the OWNER. 3.15 LAWS AND ORDINANCES. The CONTRACTOR shall at all times observe and comply with all Federal, State and local laws, ordinances and regulations, which in any manner affect the contract or the work, and shall indemnify and save harmless the OWNER and ARCHITECT against any claim arising from the violation of any such laws, ordinances, and regulations whether by the CONTRACTOR or his employees, except where such violations are called for by the provisions of the Contract Documents. If the CONTRACTOR observes that the plans and specifications are at variance therewith, he shall promptly notify the ARCHITECT in writing, and any necessary changes shall be adjusted as provided in the contract for changes in the work. If the CONTRACTOR performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the ARCHITECT, he shall bear all costs arising therefrom. In case the OWNER is a body politic and corporate, the law from which it derives its powers, insofar as the same regulates the objects for which, or the manner in- which, or the conditions under which the OWNER may enter into contract, shall be 4' controlling, and shall be considered as part of this contract, to the same effect as though embodied herein. 13 3.16 ASSIGNMENT AND SUBLETTING. The CONTRACTOR further agrees that he will retain personal control and will give his personal attention to the fulfillment of this contract and that he will not assign by Power of Attorney, or otherwise, or sublet said contract without the written consent of the ARCHITECT, and that no part or feature of the work will be sublet to anyone objectionable to the ARCHITECT or the OWNER. The CONTRACTOR further agrees that the subletting of any portion or feature of the work, or materials- required in the performance of this contract, shall not relieve the CONTRACTOR from his full obligations to the OWNER, as provided by this Agreement. 3.17 INDEMNIFICATION. CONTRACTOR AGREES TO AND SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND, THE OWNER, ARCHITECT, AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES, 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 ATTORNEYS' FEES FOR INJURY TO OR DEATH OF ANY PERSON, OR FOR DAMAGE TO ANY PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE WORK DONE BY CONTRACTOR UNDER THIS CONTRACT, WHERE SUCH INJURIES, DEATH OR DAMAGES ARE CAUSED BY THE JOINT NEGLIGENCE OF THE OWNER OR ARCHITECT, AND ANY OTHER PERSON OR ENTITY. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH THE CONTRACTOR AND THE OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS AN INDEMNITY BY THE CONTRACTOR TO INDEMNIFY, PROTECT AND DEFEND THE OWNER AND ARCHITECT FROM THE CONSEQUENCES OF THE OWNER'S AND /OR ARCHITECT'S OWN NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING CAUSE OF THE INJURY, DEATH OR DAMAGE. FURTHERMORE, THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL HAVE NO APPLICATION TO ANY CLAIM, LOSS, DAMAGE, CAUSE OF ACTION, SUIT AND LIABILITY WHERE THE INJURY, DEATH OR DAMAGE RESULTS FROM THE SOLE NEGLIGENCE OF OWNER OR ARCHITECT UNMIXED WITH THE FAULT OF ANY OTHER PERSON OR ENTITY. 3.18 INSURANCE. The CONTRACTOR at his own expense shall purchase, maintain and keep in force such insurance as will protect him from claims set forth below which may arise out of or result from the CONTRACTOR'S operations under the Contract, whether such operations be by himself or by any Sub- contractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: (1) Workmen's compensation claims, disability benefits and other similar employee benefit ants; 14 ® (2) Claims for damages because of bodily injury, occupational sickness or disease, or death of his employees, and claims insured by usual bodily injury liability coverages; (3) Claims for damages because of bodily injury, sickness or disease, or death of any person other than his employees, and claims insured by usual bodily injury liability coverages; and (4) Claims for damages because of injury to or destruction of tangible property, including loss of use resulting therefrom. 3.18.1 CERTIFICATE OF INSURANCE. Before commencing any of the work, CONTRACTOR shall file with the OWNER valid Certificates of Insurance acceptable to the OWNER and the ARCHITECT. Such Certificates shall contain a provision that coverages afforded under the policies will not be cancelled until at least fifteen days prior written notice has been given to the OWNER. The CONTRACTOR shall also file with the OWNER valid Certificates of Insurance covering all sub - contractors. 4. PROSECUTION AND PROGRESS 4.01 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction; provided, however, that the order and the time of prosecution shall be such that the work shall be substantially completed as a whole and in part, in accordance with this contract, the plans and specifications, and within the time of completion designated in the Proposal; provided, also, that when the OWNER is having other work done, either by contract or by his own force, the ARCHITECT may direct the time and phasing of constructing the work done under this contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized. The CONTRACTOR shall submit, at such times as may reasonably be requested by the ARCHITECT, schedules which shall show the 15 order in which the CONTRACTOR proiposes to carry on the work, with dates at which the CONTRACTOR will start the several parts of the work, and estimated dates of completion of the several parts. 4.02 EXTENSION OF TIME. Should the completion of the work by any ARCHITECT, or of any employee of ej employed by the OWNER, or by Chang strikes, lock -outs, fires, and carriers, or unavoidable cause or c control, or by any cause which justifies the delay, then an exten for completing the work, sufficient the amount of the extension to be provided, however, that the CONTRA prompt notice in writing of the cau 4.03 HINDRANCES AND DELAYS. Nc CONTRACTOR for. damages resulting f any cause (except where the work OWNER) during the progress of any in this contract. In case said woi of the OWNER, then such expense ARCHITECT is caused by such stoppa by the OWNER to the CONTRACTOR. the CONTRACTOR be delayed in ct or neglect of the OWNER or ther, or by other contractors !s ordered in the work, or by unusual delays by common auses beyond the CONTRACTOR'S the ARCHITECT shall decide ;ion of time shall be allowed to compensate for the delay, determined by the ARCHITECT, :TOR shall give the ARCHITECT ;e of such delay. claims shall be made by the ,-om hindrances or delays from is stopped by order of the portion of the work embraced k shall be stopped by the act as in the judgment of the [e of said work shall be paid 5. MEASUREMENT AND PAYMENT 5.01 QUANTITIES AND MEASUREMENTS. No extra or customary measurements of any kind will be allowed, but the actual measured and /or computed length, area, solid contents, number and weight only shall be considered, unless otherwise specifically provided. 5.02 ESTIMATED QUANTITIES. This agreement, including the specifications, plans and estimate, is intended to show clearly all work to be done and materials to be furnished hereunder. Where the estimated quantities are shown for the various classes of work to be done and material to be furnished under this contract, they are approximate and are to be used only as a basis for estimating the probable cost of the work and for comparing the proposals offered for the work. It is understood and agreed that the actual amount of work to be done and material to be furnished under this contract may differ somewhat from these estimates, and that where the basis for payment under 16 0 this contract is the unit price method, payment shall be for the actual amount of such work done and the material furnished. Where payment is based on the unit price method, the CONTRACTOR agrees that he will make no claim for damages, anticipated profits or otherwise on account of any differences which may be found between the quantities of work actually done, the material actually furnished under this contract and the estimated quantities contemplated and contained in the proposal; provided, however, that in case the actual quantity of any major item should become as much as 20% more than, or 20% less than the estimated or contemplated quantity for such items, then either party to this Agreement, upon demand, shall be entitled to a revised consideration upon the portion of the work above or below 20% of the estimated quantity. A "Major Item" shall be construed to be any individual bid item incurred in the proposal that has a total cost equal to or greater than five (5) per cent of the total contract cost, computed on the basis of the proposal quantities and the contract unit prices. Any revised consideration is between the parties, otherwise as provided under "Extra Work ". to be determined by agreement by the terms of this Agreement, 5.03 PRICE .OF WORK. In consideration of the furnishing of all the necessary labor, equipment and material, and the completion of all work by the CONTRACTOR, and on the completion of all work and of the delivery of all material embraced in this Contract in full conformity with the specifications and stipulations herein contained, the OWNER agrees to pay the CONTRACTOR the prices set forth in the Proposal hereto attached, which has been made a part of this contract. The CONTRACTOR hereby agrees to receive such prices in full for furnishing all material and all labor required for the aforesaid work, also for all expense incurred by him, and for well and truly performing the same and the whole thereof in the manner and according to this Agreement. 5.04 PARTIAL PAYMENTS. On or before the 10th day of each month, the CONTRACTOR shall prepare and submit to the ARCHITECT for approval or modification a statement showing as complet -ely as practicable the total value of the work done by the CONTRACTOR up to and including the last day of the preceeding month; said statement shall also include the value of all sound materials delivered on the site of the work that are to be 17 40 fabricated into the work. The OWNER shall then pay the CONTRACTOR on or before the last day of the current month the total amount of the approved statement, less applicable retainage of the amount thereof, which retainage shall be retained until final payment, and further less all previous payments and all further sums that. may be retained by the OWNER under the terms of this Agreement. If the total Contract Price at time of Contract execution is Four Hundred Thousand Dollars ($400,000.00) or more, the agreed retainage until final payment will be Five Percent (5%), otherwise, the agreed retainage until final payment will be Ten Percent (10 %). 5.05 USE OF COMPLETED PORTIONS. The OWNER shall have the right to take possession of and use any completed or partially completed portions of the work, notwithstanding the time for completing the entire work or such portions -may not have expired but such taking possession and use shall not be deemed an acceptance of any work not completed in accordance with the Contract Documents. If such prior use increases the cost of or delays the work, the CONTRACTOR shall be entitled to such extra compensation, or extension of time, or both, as the ARCHITECT may determine. The CONTRACTOR shall notify the ARCHITECT when, in the CONTRACTOR'S opinion, the contract is "substantially completed" and when so notifying the ARCHITECT, the CONTRACTOR shall furnish to the ARCHITECT in writing a detailed list of unfinished work. The ARCHITECT will review the CONTRACTOR'S list of unfinished work and will add thereto such items as the CONTRACTOR has failed to include. The "substantial completion" of the structure or facility shall not excuse the CONTRACTOR from performing all of the work undertaken, whether of a minor or major nature, and thereby completing the structure or facility in accordance with the Contract Documents. 5.06 FINAL COMPLETION AND ACCEPTANCE. Within ten (10) days after the CONTRACTOR has given the ARCHITECT written notice that the work has been completed, or substantially completed, the ARCHITECT and the OWNER shall inspect the work and within said time, if the work be found to be completed or substantially completed in accordance with the Contract Documents, the ARCHITECT shall issue to the OWNER and the CONTRACTOR his Certificate of Completion, and thereupon it shall be the duty of the OWNER within ten (10) days to issue a Certificate of 10 Acceptance of the work to the CONTRACTOR or to advise the 18 ® CONTRACTOR in writing of the reason for non -a- cceptance. 5.07 FINAL PAYMENT. Upon the issuance of the Certificate of Completion, the ARCHITECT shall proceed to verify final completion and the final statement of the CONTRACTOR of all work performed and materials furnished under the terms of the Agreement and shall certify same to the OWNER, who shall pay to the CONTRACTOR on or after the 30th day, and before the 35th day, after the date of the Certificate of Completion, the balance due the CONTRACTOR under the terms of this Agreement, provided he has fully performed his contractual obligations under the terms of this contract; and said payment shall become due in any event upon said performance by the CONTRACTOR. Neither the Certificate of Acceptance nor the final payment, nor any provision in the Contract Documents, shall relieve the CONTRACTOR of the obligation for fulfillment of any warranty which may be required. 5.08 PAYMENTS WITHHELD. The OWNER may, on account of subsequently discovered evidence, withhold or nullify the whole or part of any certificate to such extent as may be necessary to protect himself from loss on account of: (a) Defective work not remedied. (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of the CONTRACTOR to make payments properly to sub - contractors or for material or labor. (d) Damage to another contractor. (e) Reasonable doubt that the work_ can be completed for the unpaid balance of the contract amount. (f) Reasonable indication that the work will not be completed within the contract time. When the above grounds are removed or the CONTRACTOR provides a Surety Bond satisfactory to the OWNER, which will protect the OWNER in the amount withheld, payment shall be made for amounts withheld because of them. 5.09 DELAYED PAYMENTS. Should the OWNER fail to make payment to the CONTRACTOR of the sum named in any partial or final statement, when payment is due, then the OWNER shall pay to the CONTRACTOR, in addition to the sum shown as due by such ®� statement, interest thereon at the rate of six (6) per cent per annum, unless otherwise specified, from date due as provided 19 under "Partial Payments" and "Final Payments ", until fully paid, which shall fully liquidate any injury to the CONTRACTOR growing out of such delay in payment, but the right is expressly reserved to the CONTRACTOR in the event payments be not promptly made, as provided under "Partial Payments ", to at any time thereafter treat the contract as abandoned by the OWNER and recover compensation, as provided under "Abandonment of Contract ", unless such payments are withheld in .accordance with the provision of "Payments Withheld ". 6. EXTRA WORK AND CLAIMS 6.01 CHANGE ORDERS. Without invalidating this Agreement, the OWNER may, at any time -or from time to time, order additions, deletions or revisions to the work; such changes will be authorized by Change Order to be prepared by the ARCHITECT for execution by the OWNER and the CONTRACTOR. The Change Order shall set forth the basis for any change in contract price, as hereinafter set forth for Extra Work, and any change in contract time which may result from the change. In the event the CONTRACTOR shall refuse to execute a Change Order which has been prepared by the ARCHITECT and executed by the OWNER, the ARCHITECT may in writing instruct the CONTRACTOR to proceed with the work as set forth in the Change Order and the CONTRACTOR may make claim against the OWNER for Extra Work involved therein, as hereinafter provided. 6.02 MINOR CHANGES. The ARCHITECT may authorize minor changes in the work not inconsistent with the overall intent of the Contract Documents and.not involving an increase in Contract Price. If the CONTRACTOR believes that any minor change or alteration authorized by the ARCHITECT involves Extra Work and entitles him to an increase in the Contract Price, the CONTRACTOR shall make written request to the ARCHITECT for a written Field Order. In such case, the CONTRACTOR by copy of his communication to the ARCHITECT or otherwise in writing shall advise the OWNER of his request to the ARCHITECT for a written Field Order and that the work involved may result in an increase in the Contract Price. Any request by shall be made ®0 proposed change. the CONTRACTOR for a change in Contract Price prior to beginning the work covered by the 20 6.03 EXTRA WORK. It is agreed that the basis of compensation to the CONTRACTOR for work either added or deleted by a Change Order or for which a claim for Extra Work is made shall be determined by one or more of the following methods: Method(A) - By agreed unit prices; or Method(B) - By agreed lump sum; or Method(C) - If neither Method (A) nor Method (B) be agreed upon before the Extra Work is commenced, then the CONTRACTOR shall be paid the "actual field cost" of the work, plus fifteen (15) percent. In the event said Extra Work be performed and paid for under Method (C), then the provisions of this paragraph shall apply and the "actual field cost" is hereby defined to include the' cost to the CONTRACTOR of all workmen, such as foreman, timekeepers, mechanics and laborers, and materials, supplies, teams, trucks, rentals on machinery and equipment, for the time actually employed or used on such Extra Work, plus actual transportation charges necessarily incurred, together with all power, fuel, lubricants, water and similar operating expenses, also all necessary incidental expenses incurred directly on account of such Extra Work, including Social Security, Old Age Benefits and other payroll taxes, and, a rateable proportion of premiums on Performance and Payment Bonds and Maintenance Bonds, Public Liability and Property Damage and Workmen's Compensation, and all other insurance as may be required by any law or ordinance, or directed by the OWNER, or by them agreed to. The ARCHITECT may direct the form in which accounts of the "actual field cost" shall be kept and the records of these accounts shall be made available to the ARCHITECT. The ARCHITECT or OWNER may also specify in writing, before the work commences, the method of doing the work and the type and kind of machinery and equipment to be used; otherwise these matters shall be determined by the CONTRACTOR. Unless otherwise agreed upon, the prices for the use of machinery and equipment shall be determined by using 100 per cent, unless otherwise specified, of the latest schedule of Equipment Ownership Expense adopted by the Associated General Contractors of America. Where practicable the terms and prices for the use of machinery and equipment shall be incorporated in the Written Extra Work Order. The fifteen (15) per cent of the "actual field cost" to be paid the CONTRACTOR shall cover and compensate him for his profit, overhead, general superintendence and field office expense, and 21 ® all other elements of cost and expense not embraced within the "actual field cost" as herein defined, save that where the CONTRACTOR'S Camp or Field Office must be maintained primarily on account of such Extra Work; then the cost to maintain and operate the same shall be included in the "actual field cost ". No claim for Extra Work of any kind will be allowed unless ordered in writing by the ARCHITECT. In case any orders or instructions, - either oral or written, appear to the CONTRACTOR to involve Extra Work for which he should receive compensation or an adjustment in the construction time, he shall make written request to the ARCHITECT for written order authorizing such Extra Work. Should a difference of opinion arise as to what does or does not constitute Extra Work, or as to the payment therefor, and the ARCHITECT insists upon its performance, the CONTRACTOR shall proceed with the work after making written request for written order and shall keep an accurate account of the "actual field cost" thereof, as provided under Method (C). 6.04 TIME OF FILING CLAIMS. It is further agreed by both parties hereto that all questions of dispute or adjustment presented by the CONTRACTOR shall be in writing .and, . filed with. the ARCHITECT within thirty (30) days after the ARCHITECT has given any directions, order or instruction to which the CONTRACTOR desires to take exception. The ARCHITECT shall reply within thirty (30) days to such written exceptions by the CONTRACTOR and render his final decision in writing. 7. ABANDONMENT OF CONTRACT 7.01 ABANDONMENT BY CONTRACTOR. In case the CONTRACTOR should abandon and fail or refuse to resume work within ten (10) days after written notification from the OWNER, or the ARCHITECT, or if the CONTRACTOR fails to comply with the orders of the ARCHITECT, when such orders are consistent with the Contract Documents, then, and in that case, where performance and payment bonds exist, the Sureties on these bonds shall be notified in writing and directed to complete the work, and a copy of said notice shall be delivered to the CONTRACTOR. After receiving said notice of abandonment the CONTRACTOR shall not remove from the work any machinery, equipment, tools, materials, or supplies then on the job but the same, together with any materials and equipment under contract for the work, ® may be held for use on the work by th.e OWNER or the Surety on the performance bond, or another contractor in completion of the 22 work; and the CONTRACTOR shall not receive any rental or credit therefor (except when used in connection with Extra Work, where credit shall be allowed as provided for under Section 6, Extra Work and Claims), it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the work and be reflected in the final settlement. Where there is no performance bond provided or in case the Surety should fail to commence compliance with the notice for completion herein above provided for, within ten (10) days after service of such notice, then the OWNER may provide for completion of the work in either of the following elective manners: 7.01.1 The OWNER may thereupon employ such force of men and use such machinery, equipment, tools, materials, and supplies as said OWNER may deem necessary to complete the work and charge the expense of such labor, machinery, equipment, tools, materials, and supplies to said CONTRACTOR, and expense so charged shall be deducted and paid by the OWNER out of such moneys as may be due, or that may thereafter at any time become due to the CONTRACTOR under and by virtue of this Agreement. In case such expense is less than the sum which would have been payable under this contract, if the same had been completed by the CONTRACTOR, then said CONTRACTOR shall receive the difference. In case such expense.is greater than the sum which would have been payable under this contract, if the same had been completed by said CONTRACTOR, then the CONTRACTOR and /or his Surety shall pay the amount of such excess to the OWNER; or 7.01.2 The OWNER under sealed bids, after five (5) days notice published one or more times in a newspaper having general circulation in the county of the location of the work, may let the contract for the completion of the-work under substantially the same terms and conditions which are provided in this contract. In case any increase in cost to the OWNER under the new contract as compared to what would have been the cost under this contract, such increase shall be charged to the CONTRACTOR and the Surety shall be and remain bound therefor. However, should the cost to complete any such new contract prove to be less than what would have been the cost to complete under this contract, the CONTRACTOR and /or his Surety shall be credited therewith. When the work shall have been substantially completed the ® CONTRACTOR and his Surety shall be so notified and Certificates of Completion and Acceptance, as provided in Paragraph 5.06 23 herein above, shall be issued. A complete itemized statement of the contract accounts, certified to by the ARCHITECT as-being correct, shall then be prepared and delivered to the CONTRACTOR and his Surety, whereupon the CONTRACTOR and /or his Surety, or the OWNER as the case may be, shall pay the balance due as reflected by said statement, within fifteen (15) days after the date of such Certificate of Completion. In the event the statement of accounts shows that the cost to complete the work is less than that which would have been the cost to the OWNER had the work been completed by the CONTRACTOR under the terms of this contract; or when the CONTRACTOR and /or his Surety shall pay the balance shown to be due by them to the OWNER, then all machinery, equipment, tools, materials or supplies left on the site of the work shall be turned over to the CONTRACTOR and /or his Surety. Should the cost to complete the work exceed the contract price, and the CONTRACTOR and /or his Surety fail to pay the amount due the .OWNER within the time designated herein above, and there remains any machinery, equipment, tools, materials or supplies on the site of the work, notice thereof, together with an itemized list of such equipment and materials, shall be mailed to the CONTRACTOR and his Surety at the respective addresses designated in this contract, provided, however, that actual written notice, such property shall be held at the risk of the CONTRACTOR and his Surety subject only to the duty of the OWNER to exercise ordinary care to protect such property. After fifteen (15) days from the date of said notice the OWNER may sell such machinery, equipment, tools, materials or supplies and apply the net sum derived from such sale to the credit of the CONTRACTOR and his Surety. Such sale may be made at either public or private sale, with or without notice, as the OWNER may elect. The OWNER shall release any machinery, equipment, tools, materials or supplies, which remain on the work, and belong to persons other than the CONTRACTOR or his Surety, to their proper owners. The books on all operations provided herein shall be open to the CONTRACTOR and his Surety. 7.02 ABANDONMENT BY OWNER. In case the OWNER shall fail to comply 'with the terms of this contract, and should fail or refuse to comply with said terms within ten (10) days after written notification by the CONTRACTOR, then the CONTRACTOR may suspend or wholly abandon the work, and may remove therefrom all machinery, tools and equipment, and all materials on the site of work that have not been included in payments to the CONTRACTOR ® and have not been wrought into the work. And thereupon the ARCHITECT shall make an estimate of the total amount earned by 24 .i7 the CONTRACTOR, which estimate shall include the value of all work actually completed by said CONTRACTOR (at the prices stated in the attached proposal where unit prices are used), the value of all partially completed work at a fair and equitable price, and the amount of all Extra Work performed at the prices agreed upon, or provided for by the terms of this contract, and a reasonable sum to cover the cost of any provisions made by the CONTRACTOR to carry the whole work to completion and which cannot be utilized. The ARCHITECT shall then make a final statement of the balance due the CONTRACTOR by deducting from the above estimate all previous payments by the OWNER and all other sums that may be retained by the OWNER under the terms of this Agreement and shall certify same to the OWNER who shall pay to the CONTRACTOR on or before thirty (30) days after the date of the notification by the CONTRACTOR the balance shown by said final statement as due the CONTRACTOR, under the terms of this Agreement. 25 u SPECIAL - ADDENDUM NO. 1 - ASCE GENERAL CONDITIONS - BID SURETY Each bidder shall submit with his proposal a cashier's check or certified check or bidder's bond equal to 10 percent of the amount bid. If the bid is upon alternates, such bid deposit or bidder's bond must be at least 10 percent of the highest amount for which the bidder offers to do all or any of the work bid upon. If a bidder's bond is submitted, it.shall be executed by the bidder and by a corporate surety. The bidder may furnish a bid deposit instead of a bidder's bond. Such deposit shall secure the Owner to the same purpose and effect as if a bidder's bond had been furnished. Every bidder submitting a bid deposit instead of a bidder's bond will be deemed to have consented to all terms, conditions, and provisions which pertain to a bidder's bond. 26 ® BCA Bricker + Cannady Architects 16 November 2001 Project Scope — Exhibit `C' Project: Renovation of Community Building 2407 Market Street Baytown, Texas Master Planning Explore the possibilities of reconfiguring the interior space of the existing approximately 35,000 sq. ft. community building. The objective of any reconfiguration would be to increase the efficiency and usability of the building. Reconfiguration possibilities would include: • Relocation of the existing Parks and Recreation Department (P &R) offices within the building; • Conversion of existing P &R offices into a variety of community meeting spaces; • Modification of the existing large meeting rooms to allow for subdivision into smaller spaces; • Modification of the existing auditorium to allow for subdivision into smaller spaces; • General suggestions for application of a wayfinding system to better communicate building entrances and interior layouts. The construction of these proposed modifications is not included in this Project Scope. Renovation Renovate certain components of the existing approximately 35,000 sq. ft. community building. The project scope includes: • Replacement of the roof assembly; • Replacement of the HVAC system; • Upgrades to the existing electrical system to provide additional capacity throughout the facility; • Renovation and .expansion of the existing toilet rooms for compliance with the Americans with Disabilities Act (ADA) and the Texas Accessibility Standards (TAS). llwbcserverlprojectslcity of baytownlcontractlexhb.c.doc KD 20 November 2009 5075 Westheimer Suite 770 Houston, Texas 77056 t:713.623.0381 f:713.623.8048 www.bc- arch.com