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Ordinance No. 10,953ORDINANCE NO. 10.953 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING A PROFESSIONAL SERVICES AGREEMENT WITH ABERCROMBIE PLANNING + DESIGN FOR CONSULTING SERVICES RELATED TO THE CONCEPT DESIGN ON THE FIRE TRAINING CENTER PROJECT; AUTHORIZING FUNDS IN A TOTAL AMOUNT NOT TO EXCEED ONE HUNDRED TWO THOUSAND FORTY AND NO/I00 DOLLARS ($102,040.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with Abererombie Planning + Design for consulting services related to the concept design on the Fire Training Center Project. A copy of said agreement is attached hereto, marked Exhibit "A," and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown authorizes funds payable to Abererombie Planning + Design in an amount not to exceed ONE HUNDRED TWO THOUSAND FORTY AND NO/100 DOLLARS ($102,040.00) for professional services in accordance with the agreement approved in Section 1 hereof. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($25,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25%). Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ and PASSED by the affirmative vote of the/5j# Council of the City of Baytown this the 28"' day of August, 2008. {/ KAYTHVE DARNELL, City Clerk APPROVED AS TO FORM: ' ■■•■■; - cR7]<fACIO RAMIREZ, SR., City Attorney \\cobsnM\lcgnl\Karcii\Filt;sCilyCoiincir\Orclinancus\200ti\Augiisl28\Abcrcri)iiiΙ Exhibit "A" STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of the day of August, 2008 ("Effective Date"). Between The City of Baytown ("OWNER") and Abercrombie Planning + Design ("CONSULTANT*). OWNER intends to engage CONSULTANT to perform architectural services related to the design of Hre Training Center (the "Project"). Such services shall include, but not be limited to, the following: > Master Plan Study for Construction of a new Fire Training Facility > Business Plan Development > Strategic Plan, incorporating findings from Master Plan and Business Plan > Site Civil Engineering Study > Animated Fly Through of Conceptual Site Plan and Models OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Architect for Professional Services Page 1 of 12 TABLE OF CONTENTS Pace ARTICLE 1 -SERVICES OF CONSULTANT 3 1.01 Scope 3 ARTICLE 2 -OWNER'S RESPONSIBILITIES 3 2.01 General 3 ARTICLE 3 -TIMES FOR RENDERING SERVICES 3 3.01 General 3 3.02 Suspension 3 ARTICLE 4-PAYMENTS TO CONSULTANT 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Architect 3 4.02 Other Provisions Concerning Payments 3 ARTICLE 5-OPINIONS OF COST 4 5.01 Opinions of Probable Construction Cost 4 5.02 Designing to Construction Cost Limit 4 5.03 Opinions of Total Project Costs 4 ARTICLE 6-GENERAL CONSIDERATIONS 4 6.01 Standards of Performance 4 6.02 Authorized Project Representatives 5 6.03 Design without Construction Phase Services 5 6.04 Use of Documents 5 6.05 Insurance 6 6.06 Termination 6 6.07 Controlling Law 7 6.08 Successors, Assigns, and Beneficiaries 7 6.09 Dispute Resolution 7 6.10 Hazardous Environmental Condition 7 6.11 Allocation of Risks 8 6.12 Notices 8 6.13 Survival .....8 6.l4Severability 8 6.15 Waiver 8 6.16 Headings 8 ARTICLE7-DEFINITIONS 8 7.01 Defined Terms 8 ARTICLE 8 -EXHIBITS AND SPECIAL PROVISIONS 11 8.01 Exhibits Included U 8.02 Total Agreement 11 Standard Form of Agreement Between Owner and Architect for Professional Services Page 2 of 12 ARTICLE 1 -SERVICES OF CONSULTANT 1.01 Scope A. CONSULTANT shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. Upon this Agreement becoming effective, CONSULTANT is authorized to begin Basic Services as set forth in Exhibit A. C. (Not Used). ARTICLE 2 -OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 -TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) CONSULTANT'S services and compensation under this Agreement have been agreed to for the design of the Project CONSULTANT'S obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Not Used). C. (Modified) For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (Modified) If OWNER fails within a reasonable period of time to give written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if OWNER delays CONSULTANTS services, CONSULTANT may, after giving seven days written notice to OWNER, suspend services under this Agreement If during such seven-day period, OWNER gives written authorization to proceed or CONSULTANT'S services are no longer delayed by OWNER, CONSULTANT may not suspend services under this Agreement B. (Modified) If CONSULTANT suspends services, CONSULTANT may be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect, reasonable costs incurred by CONSULTANT in connection with such suspension and reactivation and the fact that the time for performance under this Agreement has been revised. ARTICLE 4 -PAYMENTS TO CONSULTANT 4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT A. For Basic Services. OWNER shall pay CONSULTANT for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additional Services. OWNER shall pay CONSULTANT for Additional Services performed or furnished under Exhibit A, Part 2, as set forth in Exhibit C. C (Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and 4.01.B, OWNER shall pay CONSULTANT for Reimbursable Expenses incurred by CONSULTANT and its Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to CONSULTANT incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and CONSULTANT shall not make a claim against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with CONSULTANTS standard invoicing practices and will be submitted to OWNER by CONSULTANT, unless otherwise agreed. CONSULTANT shall supply detailed back-up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. (Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to make any payment due CONSULTANT for services and expenses within 30 days after receipt of CONSULTANT'S invoice and backup documentation therefor, the delinquent amount shall accrue interest at the rate specified in section 2251.025 of the Texas Government Code. CONSULTANT may after giving seven days written notice to OWNER suspend services under this Agreement until CONSULTANT has been paid in full all amounts due for services, expenses, and other related charges. However, it is expressly understood and agreed that CONSULTANT will not charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and Standard Form of Agreement Between Owner and Architect for Professional Services Page 3 of 12 withheld in accordance with paragraph 3.02.C and that CONSULTANT will not suspend services under the agreement on account of a disputed invoice or on account of monies withheld. All payments will be credited first to principal and then to interest C. Disputed Invoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. In the event of any termination under section 6.06, CONSULTANT will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred through the effective date of termination. 2. (Not Used) E (Modified) Records of CONSULTANT'S Costs. Records of CONSULTANT'S costs pertinent to CONSULTANT'S compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER F. Legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on CONSULTANTS services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such taxes, fees, or costs be imposed, they shall be in addition to CONSULTANTS estimated total compensation. ARTICLE 5 -OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. CONSULTANTS opinions of probable Construction Cost provided for herein are to be made on the basis of CONSULTANT'S experience and qualifications and represent CONSULTANT'S best judgment as an experienced and qualified professional generally familiar with the industry. However, since CONSULTANT has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Contractor's methods of determining prices, or over competitive bidding or market conditions, CONSULTANT cannot and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by CONSULTANT. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an independent cost estimator as provided in Exhibit B. 5.02 (Not Used) 5.03 Opinions of Total Project Costs A. CONSULTANT assumes no responsibility for the accuracy of opinions of Total Project Costs. ARTICLE 6 -GENERAL CONSIDERATIONS 6.01 Standards of Performance A. (Modified) The standard of care for all services to be performed under this Agreement will be the care and skill ordinarily used by members of the applicable disciplines, including, but not limited to, architects and professional engineers, practicing under similar circumstances at the same time and in the same locality. B. (Modified) All professional performing services under this Agreement shall be responsible for the technical accuracy of their services and documents resulting therefrom, and OWNER shall net be responsible for discovering deficiencies therein. CONSULTANT shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER-furnished information upon which CONSULTANT is authorized to rely as provided in Section 6.01.E. C CONSULTANT shall perform or furnish professional architectural,' engineering and related services in all phases of the Project to which this Agreement applies. Such professionals shall be appropriately licensed and/or registered to practice in the State of Texas. CONSULTANT shall serve as OWNER'S prime professional for the Project CONSULTANT shall employ such professionals as CONSULTANT deems necessary to assist in the performance or furnishing of the services. CONSULTANT shall not be required to employ any professional unacceptable to CONSULTANT. D. CONSULTANT and OWNER shall comply with applicable Laws or Regulations and OWNER-mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER'S responsibilities or to CONSULTANT s scope of services, times of performance, or compensation. Standard Form of Agreement Between Owner and Architect for Professional Services Page 4 of 12 E. (Modified) OWNER shall be responsible for, and CONSULTANT may rely upon, the accuracy and completeness of all requirements, programs, instructions, reports, data, and other information furnished by OWNER to CONSULTANT pursuant to this Agreement, unless expressly stated or communicated otherwise by OWNER. CONSULTANT may use such requirements, reports, data, and information in performing or furnishing services under this Agreement F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs incident thereto so as not to delay the services of CONSULTANT. G. Prior to the commencement of the Construction Phase, OWNER shall notify CONSULTANT of any variations from the language indicated in Exhibit E, "Notice of Acceptability of Work," or of any other notice or certification that CONSULTANT will be requested to provide to OWNER or third parties in connection with the Project OWNER and CONSULTANT shall reach agreement on the terms of any such requested notice or certification, and OWNER shall authorize such Additional Services as are necessary to enable CONSULTANT to provide the notices or certifications requested. H. (Modified) CONSULTANT shall not be required to sign any documents, no matter by whom requested, that would result in CONSULTANT'S having to certify, guarantee or warrant the existence of conditions whose existence CONSULTANT cannot ascertain; provided, that CONSULTANT has exercised due diligence and was not otherwise required to certify, guarantee or warrant the existence of such conditions. I. Daring the Construction Phase, CONSULTANT shall not supervise, direct, or have control over Contractor's work, nor shall CONSULTANT have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work J. (Modified) CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve CONSULTANT from liability for any such failure about which CONSULTANT knew or should have known existed in the exercise of CONSULTANTS services under this Agreement. K. (Modified) CONSULTANT shall not be responsible for the acts or omissions of any Contractors), subcontractor or supplier, or of any of the Contractor's, agents or employees or any other persons (except CONSULTANT'S own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or performing any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of CONSULTANT. L (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, CONSULTANT and OWNER shall designate specific individuals to act as CONSULTANTS and OWNER'S representatives with respect to the services to be performed or furnished by CONSULTANT and responsibilities of OWNER under this Agreement Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. 6.03 (Not Used) 6.04 Use of Documents A. (Modified) Upon execution of this Agreement the CONSULTANT grants to the OWNER an ownership interest in the Instruments of Service. The CONSULTANT shall obtain similar interests from its consultants consistent with this Agreement Within seven days of any termination or expiration of this Agreement, the CONSULTANT shall be required to tender to OWNER all Instruments of Service; provided OWNER has paid all monies, excluding any disputed amount due and owing to CONSULTANT in accordance with this Agreement With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes which the OWNER sees fit including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project As a condition to the OWNER's use of the Instruments of Service, the OWNER hereby expressly agrees to remove the CONSULTANT'S name and all references to the CONSULTANT, and its consultants from the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER. This release of claims for the matters covered in this Paragraph 6.04.A shall be for the benefit of the Standard Form of Agreement Between Owner and Architect for Professional Services Page 5 of 12 CONSULTANT, its officers, and employees and sub- consultants, as well as their successors and assigns. B. (Modified) Copies of OWNER-furnished data that may be relied upon by CONSULTANT are limited to the printed copies that are delivered to CONSULTANT pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by OWNER to CONSULTANT are only for convenience of CONSULTANT. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the appropriate professional. Files in electronic media format of text, data, graphics, or of other types that are furnished by CONSULTANT to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60-day acceptance period. CONSULTANT shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER E. When transferring documents in electronic media format, CONSULTANT makes no representations as to long- term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by CONSULTANT at the beginning of this Project F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER'S sole risk and OWNER hereby releases CONSULTANT from any liability associated solely with the reuse of the Documents. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle CONSULTANT to further compensation at rates to be agreed upon by OWNER and CONSULTANT. 6.05 Insurance A. CONSULTANT shall procure and maintain insurance as set forth in Exhibit G, "Insurance." B. Not used. C. Not used. D. Not used. E Not used. F. At any time, OWNER may request that CONSULTANT, at OWNER'S sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of CONSULTANT, and if commercially available, CONSULTANT shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) terminated: The obligations hereunder may be 1. For cause, a. (Modified) By either party upon 30 days written notice in the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party; or b. By CONSULTANT upon seven days written notice if CONSULTANT is being requested by OWNER to furnish or perform services contrary to CONSULTANTS responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof; provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend Standard Form of Agreement Between Owner and Architect for Professional Services Page 6 of 12 up to, but in no case more than 60 days after the date of receipt of the notice. 2. For convenience by OWNER effective upon the receipt of notice by CONSULTANT. B. Not used. 6.07 Controlling Law A. This Agreement is to be governed by the law of the state in which the Project is located. 6.08 Successors, Assigns, and Beneficiaries A. OWNER and CONSULTANT each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and CONSULTANT (and to the extent permitted by paragraph 6.08.B the assigns of OWNER and CONSULTANT) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor CONSULTANT may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or CONSULTANT to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and CONSULTANT and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.C shall appear in the Contract Documents. 6.10 Hazardous Environmental Condition A. OWNER represents to Architect that to the best of its knowledge a Hazardous Environmental Condition does not exist B. (Modified) OWNER has disclosed to the best of its knowledge and belief to CONSULTANT the existence of all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including type, quantity and location. C (Modified) If a Hazardous Environmental Condition is encountered or alleged, CONSULTANT shall have the obligation to notify OWNER on or before the next business day of the same. D. It is acknowledged by both parties that CONSULTANTS scope of services does not include any services related to a Hazardous Environmental Condition. In the event CONSULTANT or" any other party encounters a Hazardous Environmental Condition, CONSULTANT may, at its option and without liability for consequential or any other damages, suspend performance of services on the portion of the Project affected thereby until OWNER (i) retains appropriate specialist consultants) or contractors) to identify and, as appropriate, abate, remediate, or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. E OWNER acknowledges that CONSULTANT is performing professional services for OWNER and that CONSULTANT is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near the Site in connection with CONSULTANTS activities under this Agreement F. If CONSULTANTS services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify CONSULTANT'S terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.09 Not Used. 6.12 Notices Standard Form of Agreement Between Owner and Architect for Professional Services Page 7 of 12 A. (Modified) Any patty at its personally, or by r^ £ by a commercial i a^^ upon the date of receipt. 6.13 Survival reason. 614 Scverabllity deemed to be valid and binding upon who agree that ^.^f« 6#15 Waiver of this Agreement 6.16 Headings ff given maU postage prepaid. ^^ QOtices ic mad if such notice or certified mail or this Agreement. d CONSULTANT, refonned to replace W a valid and ARTICLE 7-DEFINITIONS 7.01 Defined Terms change to Bidding Documents. hereof. supporting Documents. Administration. 6 for the Work to be performed the Construction Agreement Contractor covering the Work. Contractor concerning the Work. not Contract Documents. 14. Contract Price-Th, moneys fiffi OWNER to Contractor for completion of the Work m ?c«Xce with the Contract Documents and as stated in the Construction Agreement. 15. Contract Times-Tht numbers of days or the payment 16 O>mr**>r--An individual or entity with whom OWNER enters into a Construction Agreement 17 Correction Period--^ time after Final » terms of any applicable special guarantee or ific provision of the Contract Documents. 18 Defective-An adjective which, when modifying word Work, refers to Work that is unsatisfactory, ££ tToONSUUTAKTs recommendauoa of final payment 19 Documents~Dm, reports, Drawings, SpecLS^rd Drawings, and;*£*£** wither in printed or electromc -^S^J^Tto or furnished in appropriate phases by CONSULTAN to OWNER pursuant to this Agreement 20 Drawng5-ThatpartoftheContractDocuments ^ ^ d by CONSULTANT which B are not Drawings as so defined. 21 Effective Date of the Construction Agreement-LSeated in the Construction Agreen^t on SSSSSSSS parties to sign and deliver. Date of the Agreement-Vie date the last of the two parties to si ver. Cow«tonte-lndividuals or entities having a X CONSULTANT to furnish services with Consultants. 24 Orcfer-A written order issued by which directs minor changes in me does not mvolve a change » the Contract Price or the Contract Times. 25 Final Completion shall mean that allIwork.has have been executed and approved ^.°W^ Z Project has been finally accepted by the OWNER. 26. General Conditions-?** part of th«^Contract Standard Form of Agreement Between Owner and Architect for Professional Services Page 9 of 12 27. Hazardous Environmental Condition-The presence at the Site of Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste-The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Laws and Regulations; Laws or Regulations- Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's-Polychlorinatedbiphenyls. 31. PefrofeMm-Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-Hazardous Waste and crude oils. 32. Radioactive Materials-Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 33. Record Drawings-The Drawings as issued for construction on which the CONSULTANT, upon, completion of the Work, has shown changes due to Addenda or Change Orders and other information which CONSULTANT considers significant based on record documents furnished by Contractor to CONSULTANT and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses-The expenses incurred directly by CONSULTANT in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay CONSULTANT as indicated in Exhibit C. 35. Resident Project Representative-Tht authorized representative of CONSULTANT, if any, assigned to assist CONSULTANT at the Site during the Construction Phase. The Resident Project Representative will be CONSULTANT s agent or employee and under CONSULTANT'S supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Sam/?fes~Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Shop Drawings-All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to CONSULTANT to illustrate some portion of the Work. 38. Site-Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Specifications-Thai part of the Contract Documents consisting of written technical descriptions of materials, equipment systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 40. Substantial Completion-The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of CONSULTANT, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 41. Supplementary Conditions-TbaX part of the Contract Documents which amends or supplements the General Conditions. 42. (Modified) Total Project Costs-Ths sum of the Construction Cost, allowances for contingencies, the total costs of services of CONSULTANT or other design professionals and consultants, cost of land, rights-of-way, compensation for damages to properties, OWNER'S costs for legal, accounting, insurance counseling or auditing services, interest and financing charges incurred in connection with the Project, and the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement 43. Work—The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Standard Form of Agreement Between Owner and Architect for Professional Services Page 10 of 12 Project Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and furnishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Work Change Directive-k written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the CONSULTANT, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 45. Written Amendment-k written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non-architectural or non-technical rather than strictly construction-related aspects of the Contract Documents. H. Exhibit H, "Dispute Resolution," is not used. I. Exhibit I, "Allocation of Risks," is not used J. Exhibit J, "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with die Exhibits identified above) constitutes the entire agreement between OWNER and CONSULTANT and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement ARTICLE 8 PROVISIONS EXHIBITS AND SPECIAL 8.01 Exhibits Included A. Exhibit A, "CONSULTANT'S Services," consisting of six (6) pages. B. Exhibit B, "OWNER'S Responsibilities," consisting of two (2) pages. C. Exhibit C, "Payments to Architect for Services and Reimbursable Expenses," consisting of two (2) pages. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative," is not used. E Exhibit E, "Notice of Acceptability of Work," is not used. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. Standard Form of Agreement Between Owner and Architect for Professional Services Page 11 of 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page 1. OWNER: OTYOFBAYTOWN CONSULTANT: ABERCROMBIE PLANNING + DESIGN GARRISON C. BRUMBACK Title: City Manager Date Signed: Address for giving notices: P.O. BOX 424 BAYTOWN, TEXAS 77422-0424 Printed NamT Title Q rViyvs^ L Date Signed IT" c3 O Address for giving notices: 3508 OVERTON PARK FORT WORTH, TEXAS 76109 Designated Representative (paragraph 6.02.A): RICHARD E. CARTER, P.E. Title: Director of Engineering Phone Number (281)420-7154 Facsimile Number (281)420-6586 E-Mail Address: dick.carter@baytown.org Designated Representative (paragraph 6.02.A): Title: *? / 7 * J ^1 'tJKo V Lo Phone Number Facsimile Number i^y A E-Mail Address:T y g) Standard Form of Agreement Between Owner and Architect for Professional Services Page 12 of 12 This is EXHIBIT A, consisting of 8 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated . Initial: OWNER CONSULTANT CONSULTANT'S Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. CONSULTANT shall provide Basic and Additional Services as set forth below. PART 1 -BASIC SERVICES (Modified) A1.01 Master plan/Conceptual Phase A. CONSULTANT perform the following tasks: 1. Task 1: Master Plan Study, which shall include the following: a. Consulting with OWNER to define and clarify OWNER'S requirements for the Project and available data; b. Advising OWNER as to the necessity of OWNER'S providing data or services of the types described in ExhibitB which are not part of CONSULTANT'S Basic Services, and assist OWNER in obtaining such data and services; c. (Modified) Identifying, consulting with, and analyzing requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by CONSULTANT, including but not limited to, requirement of the Texas Accessibility Standards of the Architectural Barriers Act; d. Identifying and evaluating potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in CONSULTANTS judgment meet OWNER'S requirements for the Project; e. Preparing the following: 1. Detailed Needs Analysis; 2. Preliminary Facility Program based upon the findings of the Needs Analysis; 3. Site Requirement Analysis; 4. Conceptual Site Plan; 5. Conceptual Building Models, including preliminary building plans, sections and elevations; 6. Preliminary Estimate of Probable Cost; and 7. Preliminary Phasing Plan; f. Furnishing three (3) review copies of the Master Plan Study containing those elements described in Section AlOl.A.l.e to OWNER within one hundred eighty (180) days of authorization to begin services and review it with OWNER; and g. Revising the Master Plan Study in response to OWNER'S and other parties' comments, as appropriate, and furnishing five (5) final copies of the revised Master Plan Study to the OWNER within ten (10) days after completion of reviewing it with OWNER Page 1 of 6 pages (Exhibit A -Architect's Services) CONSULTANT'S services under this Task 1 will be considered complete on the date when the final copies of the revised Master Han Study have been delivered to and accepted by OWNER. 2. Task 2: Business Plan Consulting. After acceptance by OWNER of Task 1 documents, but subject to any OWNER-directed modifications or changes in the scope, extent, or character of or for the Project, and upon written authorization from OWNER, CONSULTANT shall: a. Lead OWNER'S staff through the development of a comprehensive business plan for the development and operation of the Project, including, but not limited to, the following: 1. Executive Summary, 2. Program Description, 3. Services, 4. Marketing Analysis, 5. Marketing Plan, 6. Operational Plan, 7. Management and Organization Plan, 8. Current Training Data, 9. Project Estimates, 10. Financial Plan, and 11. Content Specific Appendices; b. Furnish three (3) review copies of the Business Plan containing those elements described in Section A1.01.A.2.a to OWNER within one hundred eighty (180) days of authorization to begin services and review it with OWNER; and c. Revise the Business Plan in response to OWNER'S and other parties' comments, as appropriate, and furnish five (5) final copies of the revised Business Plan to the OWNER within ten (10) days after completion of reviewing it with OWNER. CONSULTANTS services under this Task 2 will be considered complete on the date when the final copies of the revised Business Plan have been delivered to and accepted by OWNER 3. Task 3: Site Development Assessment. After acceptance by OWNER of Task 1 documents, but subject to any OWNER-directed modifications or changes in the scope, extent, or character of or for the Project, and upon written authorization from OWNER, CONSULTANT shall a. Perform research on the following development issues: 1. Submittal/Development Requirements -Site Plan/Platting Requirements, 2. Existing Site Conditions/Topographic (Earthwork Concerns) Conditions, 3. Storm Drainage/Detention Requirements, 4. Franchise Utility Availability -Gas, Electric, telephone, Cable, 5. On-Site Water/Sanitary Sewer Plan Approved Requirements, 6. Erosion Control Requirements (SWPPP), 7. Traffic/Transportation/Access Issues, 8. Impact Fees/Pro-Rata Fees, 9. Paving/Street Requirements, 10. Zoning/Building Setback, Parking, Signage, etc. Requirements, 11. Permitting Agencies, 12. Rood Plain Issues, and 13. Tree Preservation, Open Space and Landscaping Requirements; Page 2 of 6 pages (Exhibit A -Architect's Services) b. Generate a general permitting and entitlement schedule along with a site assessment report, containing a write-up of development issues identified in Section A1.01.A.3.a. and appendices and exhibits to illustrate the findings based upon CONSULTANTS site visits and research, interviews with OWNER'S staff, utility company records and land development experience in the area; c. Furnish three (3) review copies of the deliverables. described in Section A1.01.A.3.b to OWNER within sixty (60) days of authorization to begin services and review it with OWNER; and d. Revise the deliverables described in Section A1.0l.A.3.b in response to OWNER's and other parties' comments, as appropriate, and furnish five (5) final copies of the same to the OWNER within ten (10) days after completion of reviewing it with OWNER CONSULTANT'S services under this Task 3 will be considered complete on the date when the final copies of the revised deliverables described in Section A1.0l.A.3.b have been delivered to and accepted by OWNER. 4. Task 4: Conceptual Design Plan. After acceptance by OWNER of Task 3 documents, but subject to any OWNER-directed modifications or changes in the scope, extent, or character of or for the Project, and upon written authorization from OWNER, CONSULTANT shall: a. Develop a Conceptual Site Plan for the overall configuration of the Project, giving consideration to project phasing, access from existing roadways, utility distribution, storm water detention and maximizing the flexibility of the Project to meet and adapt to the OWNER's training needs; b. Furnish three (3) review copies of the Conceptual Site Plan to OWNER within thirty (30) days of authorization to begin services and review it with OWNER; and c. Revise the Conceptual Site Plan in response to OWNER'S and other parties' comments, as appropriate, and furnish five (5) final copies of the same to the OWNER within ten (10) days after completion of reviewing it with OWNER. CONSULTANTS services under this Task 4 will be considered complete on the date when the final copies of the Conceptual Site Ran have been delivered to and accepted by OWNER 5. Task 5: Preliminary Engineering. After acceptance by OWNER of Task 4 documents, but subject to any OWNER-directed modifications or changes in the scope, extent, or character of or for the Project, and upon written authorization from OWNER, CONSULTANT shall: a. Develop Preliminary Engineering Plans, which will include the following: 1. Preliminary Site Plan, 2. Preliminary Grading Plan, 3. Preliminary Storm Drainage Plan, 4. Preliminary Water and Sanitary Sewer Plan, and 5. Opinion of Probable Construction Costs; b. Furnish three (3) review copies of the Preliminary Engineering Plan to OWNER within thirty (30) days of authorization to begin services and review it with OWNER; and Page 3 of 6 pages (Exhibit A -Architect's Services) c. Revise the Preliminary Engineering Plan in response to OWNER'S and other parties' comments, as appropriate, and furnish five (5) final copies of the same to the OWNER within ten (10) days after completion of reviewing it with OWNER. CONSULTANTS services under this Task 5 will be considered complete on the date when the final copies of the Preliminary Engineering Plan have been delivered to and accepted by OWNER. 6. Task 6: Exhibit Preparation. Upon written authorization from OWNER, CONSULTANT shall: a. Prepare exhibits for use in presenting the concepts to various agencies as requested by the City of Baytown; b. Furnish three (3) review copies of the exhibits to OWNER within thirty (30) days of authorization to begin services and review it with OWNER; and c. Revise the exhibits in response to OWNER'S and other parties' comments, as appropriate, and furnish fifteen (15) final copies of the same to the OWNER within ten (10) days after completion of reviewing it with OWNER. 7. Task 7: Project Meetings, which shall include the following: Upon written request of OWNER, CONSULTANT shall attend meetings with the OWNER, OWNER'S staff and/or regulatory agencies at any time during the services provided under Section A 1.01. 8. Task 8: Animated Fly Through. Upon written authorization from OWNER, CONSULTANT shall a. generate a 3 to 5 minute animated video fly through of the conceptual site plan and conceptual building models developed during the Master Plan/Concept Phase; b. Furnish three (3) review copies of the exhibits to OWNER within thirty (30) days of authorization to begin services and review it with OWNER; and c. Revise the exhibits in response to OWNER'S and other parties' comments, as appropriate, and furnish five (5) final copies of the same to the OWNER within ten (10) days after completion of reviewing it with OWNER. CONSULTANTS services under this Task 8 will be considered complete on the date when the final copies of the animated fly through have been delivered to and accepted by OWNER. PART 2 --ADDITIONAL SERVICES A2.01 Additional Services Requiring OWNER's Authorization in Advance A. If authorized in writing by OWNER, CONSULTANT shall furnish or obtain from others Additional Services of the types listed below. These services will be paid for by OWNER as indicated in Article 4 of the Agreement 1. (Modified) Preparation of applications and supporting documents (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effects on the design requirements for the Project of any such statements and documents prepared by Page 4 of 6 pages (Exhibit A -Architect's Services) others; assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project; and assistance in obtaining on behalf of the OWNER permits not otherwise included with the scope of Basic Services from all governmental authorities having jurisdiction to approve all phases of the PROJECT designed or specified by CONSULTANT. 2. Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 3. (Modified) Services resulting from significant changes in the scope, extent, or character of the portions of the Project designed or specified by CONSULTANT or its design requirements including, but not limited to, changes in size, OWNER'S schedule, or character of construction; and revising previously accepted studies, reports, Drawings, Specifications, or Contract Documents when such revisions are required by changes in Laws and Regulations enacted subsequent to the Effective Date of this Agreement 4. (Modified) Services resulting from OWNER'S request to evaluate additional Phase alternative solutions beyond those identified in paragraph A 1.01. 5. Services required as a result of OWNER's providing incomplete or incorrect Project information with respect to Exhibit B; provided, such information was to be relied upon by CONSULTANT pursuant to Section 6.01.EA of the Agreement 6. Providing renderings or models for OWNER1 s use, which are not required as part of Basic Services. 7. Undertaking investigations and studies including, but not limited to, detailed consideration of operations, maintenance, and overhead expenses; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining financing for the Project; evaluating processes available for licensing, and assisting OWNER in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor; and audits or inventories required in connection with construction performed by OWNER. 8. Furnishing services of its Consultants for other than Basic Services. 9. Services attributable to more prime construction contracts than specified in paragraph A1.03 .C. 10. Services during out-of-town travel required of CONSULTANT other than for visits to the Site or OWNER'S office. 11. Preparing for, coordinating with, participating in and responding to structured independent review processes, including, but not limited to, construction management, cost estimating, project peer review, value architectural, and constructibility review requested by OWNER; and performing or furnishing services required to revise studies, reports, Drawings, Specifications, or other Bidding Documents as a result of such review processes. 12. Providing assistance in resolving any Hazardous Environmental Condition in compliance with current Laws and Regulations. 13. (Modified) Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other dispute resolution process related to the Project if CONSULTANT is not a party to the same). 14. Providing more extensive services required to enable CONSULTANT to issue notices or certifications requested by OWNER under paragraph 6.01.G of the Agreement. 15. Other services performed or furnished by CONSULTANT not otherwise provided for in this Agreement 16. Property descriptions. Page 5 of 6 pages (Exhibit A -Architect's Services) 17. (Modified) Property, easement, right-of-way, and other special surveys or data, including establishing relevant reference points. 18. (Added) Environmental assessments, audits, investigations and impact statements, and other relevant environmental or cultural studies as to the Project, the Site, and adjacent areas. 19. (Added) Additional services during construction made necessary by (1) emergencies or acts of God endangering the Work, (2) an occurrence of a Hazardous Environmental Condition, (3) Work damaged by flre or other cause during construction, or (4) acceleration of the progress schedule involving services beyond normal working hours. Page 6 of 6 pages (Exhibit A. -Architect's Services) This is EXHIBIT B, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CQNSULTANT^lL- OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide CONSULTANT with all criteria and full information as to OWNER'S requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER'S standard forms, conditions, and related documents for CONSULTANT to include in the Bidding Documents, when applicable. B. Furnish to CONSULTANT any other available information pertinent to the Project including reports and data relative to previous designs, or investigation at or adjacent to the Site. C. (Modified) Following CONSULTANT'S assessment of initially-available Project information and data and upon CONSULTANT'S written request, furnish or otherwise make available such additional available Project related information and data as is reasonably required to enable CONSULTANT to complete its Basic and Additional Services. 1. (Not Used). 2. (Not Used). 3. (Not Used). 4. (Not Used). 5. (Not Used). 6. (Not Used). D. (Not Used). E. (Modified) Authorize CONSULTANT to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as the OWNER determines is necessary. F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public property as required for CONSULTANT to perform services under the Agreement O. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other documents presented by CONSULTANT (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. H. (Not Used). Page 1 of 2 pages (Exhibit B -OWNER's Responsibilities) I. (Not Used). J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value architectural, and constructability review. K. Furnish to CONSULTANT data as to OWNER'S anticipated costs for services to be provided by others for OWNER so that CONSULTANT may make the necessary calculations to develop and periodically adjust CONSULTANT s opinion of Total Project Costs. L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition to, CONSULTANT to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties, responsibilities, and authority of CONSULTANT. M. Attend the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings, and Substantial Completion and final payment inspections. N. Provide copies of daily observation reports prepared by OWNER'S on-site representative to CONSULTANT during construction phase. Page 2 of 2 pages (Exhibit B -OWNER'S Responsibilities) This is EXHIBIT C, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT Payments to CONSULTANT for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: ARTICLE 4 CONSULTANT PAYMENTS TO THE C4.01 For Basic Services Having A Determined Scope -Cost not to Exceed Method of Payment A. OWNER shall pay CONSULTANT for Basic Services set forth in Exhibit A as follows: 1. (Modified) A cost not to exceed amount of $94,540.00, based upon the rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated herein for all intents and purposes. The fee shall not exceed the following for each itemized phase or category: a. Master Plan/Conceptual Phase 1. Task 1 $ 25,000.00 2. Task 2 $ 10,000.00 3. Task3 $ 5,280.00 4. Task 4 $ 6,160.00 5. Task 5 $ 20,020.00 6. Task 6 $ 4,180.00 7. Task 7 $ 18,900.00 8. Task 8 $ 5,000.00 3.2. (Modified) CONSULTANT may with the consent of OWNER alter the distribution of compensation between individual phases noted herein to be consistent with services actually rendered, but shall not exceed the total cost not to exceed amount unless approved in writing by the OWNER. 3. The cost not to exceed includes compensation for CONSULTANTS services and services of its Consultants (with the exception of those outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, overhead, profit, and Reimbursable Expenses. 4. Not Used. 5. The portion of the amount billed for CONSULTANT'S services will be based upon total services actually completed during the billing period. C4.02 For Basic Services Having An Undetermined Scope -Direct Labor Costs Times a Factor Method of Payment A. (Not Used). ■ C4.03 For Additional Services A. OWNER shall pay CONSULTANT for Additional Services as follows: 1. General. For services of CONSULTANT'S employees engaged directly on the Project pursuant to paragraph A2.01 or A2.02 of Exhibit A of the Agreement, except for services as a consultant or witness under paragraph A2.01.A.13, an amount equal to CONSULTANTS Direct Labor Costs based upon the rate schedule, which is attached as Appendix 1 of Exhibit C and incorporated herein for all intents and purposes plus Reimbursable Expenses and CONSULTANT'S Consultant's charges, if any. Additional Services shall not exceed $0.00 without the prior written consent of the Owner. 2. (Not Used). Page 1 of 2 pages (Exhibit C -Basic Services With Determined Scope -Cost not to exceed Method) C4.04 For Reimbursable Expenses A. (Modified) OWNER shall pay CONSULTANT for Reimbursable Expenses at the rate set forth in Appendix 2 of this Exhibit C. Before the OWNER shall be liable for any reimbursable expenses, the CONSULTANT must obtain prior written approval of the OWNER of any expense that exceeds $1000.00 for which the CONSULTANT seeks reimbursement Reimbursable Expenses shall not exceed $7,500.00. B. (Modified) Reimbursable Expenses include the following categories: mileage, parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project-related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER. C. The amounts payable to CONSULTANT for Reimbursable Expenses will be the Project-related internal expenses actually incurred or allocated by CONSULTANT, plus all invoiced external Reimbursable Expenses allocablc to the Project, the latter multiplied by a Factor of (1.10). D. Not Used. E. (Added) The OWNER must approve all travel expenses before the same are incurred. If such approval is not obtained, the OWNER shall not be liable for such travel expenses. C4.05 For CONSULTANT'S Consultant's Charges A. (Not used) C4.06 Direct Labor Costs A. Direct Labor Costs means salaries and wages paid to CONSULTANT* s employees but does not include payroll related costs or benefits. B. (Not Used). 4.07 Rate Schedule A. (Modified) The Rate Schedule includes the cost of customary and statutory benefits including, but not limited to, social security contributions, unemployment, excise and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation, and holiday pay applicable thereto; the cost of general and administrative overhead, which includes salaries and wages of principals and employees engaged in business operations not directly chargeable to projects, plus non-Project operating costs, including but not limited to, business taxes, legal, rent, utilities, office supplies, insurance, and other operating costs; plus operating margin or profit. B. External Reimbursable Expenses and CONSULTANT'S Consultant's Fees include CONSULTANT'S overhead and profit associated with CONSULTANT'S responsibility for the administration of such services and costs. C4.08 Other Provisions Concerning Payment A. Progress Payments. The portion of the amounts billed for CONSULTANT'S services which are identified in paragraphs C4.01 and C4.03, will be based on the Rate Schedule for the cumulative hours charged to the Project during the billing period by all of CONSULTANT'S employees, plus Reimbursable Expenses and CONSULTANTS Consultant's charges, if any. Page 2 of 2 pages (Exhibit C -All Other Services/Charges ~ Cost not to Exceed Method of Payment) APPENDIX 1 OF EXHIBIT C RATE SCHEDULE Page 1 of 1 pages (Appendix 1 to Exhibit C Rate Schedule) APPENDIX 2 OF EXHIBIT C REIMBURSEMENT OF COSTS Reproduction and Deliveries: Cost plus 10% Mileage: IRS Rate Page 1 of 1 pages (Appendix 2 to Exhibit C Reimbursement of Costs) This is EXHIBIT G, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance Throughout the term of this Agreement, the CONSULTANT at its own expense shall purchase, maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the CONSULTANT'S operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the CONSULTANT, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The CONSULTANT'S insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of the CONSULTANT'S insurance and shall not contribute to it. Further, the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract Commercial General Liability (CGL) General Aggregate: $1,000,000 Products & Completed Operations: $1,000,000 Personal & Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy (BAP) Combined Single Limits: $1,000,000 a. Coverage for "Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability $500,000 Waiver of Subrogation required Errors & Omissions (E&O) Limit: $500,000 Page 1 of 2 Pages (Exhibit G -Insurance) a. For all architects, and/or design companies. b. Claims-made form is acceptable. c. Coverage will be in force for three (3) years after project is completed. Upon execution of this contract, CONSULTANT shall file with the OWNER valid Certificates of Insurance and endorsements acceptable to the OWNER. Such Certificates shall contain a provision that coverage afforded under the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice has been given to the OWNER via certified mail, return receipt requested. The CONSULTANT shall also file with the OWNER valid Certificates of Insurance covering all subcontractors. The following are general requirements applicable to all policies: a. AM Best Rating of A: VII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. c. Liability policies will be on occurrence form. E & O can be on claims-made form. d. City of Baytown, its officials and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. e. Upon request of and without cost to City of Baytown, certified copies of all insurance policies and/or certificates of insurance shall be furnished to City of Baytown's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to City of Baytown's representative prior to execution of this agreement f. Upon request of and without cost to City of Baytown, loss runs (claims listing) of any and/or all insurance coverage shall be furnished to City of Baytown's representative. Page 2 of 2 pages (Exhibit G -Insurance) This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT /A/ CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER, 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 CONSULTANT OR CONSULTANT'S EMPLOYEES (HEREINAFTER, WHETHER SINGULAR OR PLURAL, COLLECTIVELY REFERRED TO AS "CONSULTANT"). IN THE EVENT OF PERSONAL INJURY TO OR DEATH OF CONSULTANT, SUCH INDEMNITY SHALL APPLY (I) TO THE FULLEST EXTENT ALLOWED BY LAW AND (II) TO THE EXTENT ALLOWED REGARDLESS OF WHETHER THE CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS OR LIABILITY ARISE (I) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF OWNER OR (II) IN WHOLE OR IN PART FROM THE NEGLIGENCE OF CONSULTANT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF (I) OWNER'S OWN NEGLIGENCE TO THE EXTENT ALLOWED BY LAW, WHERE THAT NEGLIGENCE IS A SOLE OR CONCURRING CAUSE OF THE RESULTING INJURY OR DEATH OF CONSULTANT AND/OR (II) CONSULTANT'S JOINT AND/OR SOLE NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS OTHER THAN CONSULTANT THAT IS CAUSED BY OR RESULTS FROM THE Page 1 of 2 Pages (Exhibit K -Indemnification) NEGLIGENCE OF OWNER. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER BY REASON OF ANY OF THE ABOVE, THE CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER AND THE CONSULTANT. The indemnity provided hereinabove shall survive the termination and/or expiration of this Agreement. CONSULTANT assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and/or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with CONSULTANT'S work to be performed hereunder. This release shall apply with respect to CONSULTANT'S work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Page 2 of 2 Pages (Exhibit K -Indemnification)