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Ordinance No. 11,377ORDINANCE NO. 11 _377 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING TI -LE CITY 1VLANAGER TO EXECUTE AND _I'I IE CITY CLERK TO A'I- I-ES'][' "I'O A PROFESSIONAL SERVICES AG P EEM ENT WI -1 -11 PIERCE GOODWIN ALEXANDER � IIINVIL,L1 , INC., FOR 17ESIGN SERVICES ASSOCIATED WITH THE EMS BUILDING ADDITION AND RENOVATION PROJECT: AUTHORIZING PAYMENT BY TI -IE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED FOURTEEN THOUSAND AND NO /100 DOLLARS ($114.000.00); MAKING OTHER PROVISIONS RELATED THERETO: AND PROVIDING FOR TILE EFFECTIVE DATE TI- IEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN. "I-EXAS: Section l: That the City Council of the City of Baytown, Texas. hereby authorizes and directs the City ?`Tanager to execute and the City Clerk to attest to a Professional Services Agreement with Pierce Goodwin Alexander R Linville. Inc.. for design services associated with the design of the EMS Building Addition and Renovation Project. A copy of the 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 payment to Pierce Goodwin Alexander & Linville, Inc., in an amount not to exceed ONE HUNDRED FOURTEEN THOUSAND AND NO /100 DOLLARS ($114.000.00) for design services in accordance with the agreement authorized in Section l hereinabove. Section 3: That the City Manager is hereby granted general authority to approve a decrease or an increase in costs by TWEN "fY -FIVE THOUSAND AND NO/] 00 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 APPROVED AS TO FORM: F the City COLInCil of the City of STJZPHEN -H. DONCARLOS, Mayor ACIO RAMIREZ, SR., Ci v ttorney Kr'.Farcn \I °�Ics \City Counci r.Ordinao3ccs7?OIOV unc 10\ I' CiALAg,rcun_ntForEMSr'rojacLdoc Exhibit "A" STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as of the — day of May, ?010 (-Effective Date'). Between City of Baytown ( "OWNER ") and Pierce Goodwin Alexander & Linville, Inc. ( "CONSULTANT ") OWNER intends to contract to provide professional design and consulting services for a renovation and addition to the existing Emergency Medical Services building and related site work ("Project ") for and on behalf of the OWNER. Such services shall include, but not be limited to, the following: > Schematic Design; > Design Development; > Construction Documents; > Bid/Permit;, and > Construction Administration. The Project consists of approximately 5,000 s.f. of major renovation to the existing Emergency Medical Services building, a 6,000 s.f. addition adjacent to the existing Emergency Medical Services building and related site work. OWNER wishes to add an addition on the North side of the existing building and renovate the second floor and a portion of the first floor of the existing building. The renovation will include reconfiguring the second floor of the existing building, including 4 to 5 bedrooms, an office, two restrooms with showers, a storage/server room, and washroom, kitchen, fitness and living/dining areas. Additional renovation of the existing building will include reconfiguration of storage areas on the first floor and planning for a future training room. All unnecessary electrical, plumbing, HVAC and nonbearing walls in the existing building will be demolished to accommodate the new proposed construction. The Project will be a free standing one story building that includes space for four (4) ambulance bays, an office, restrooms and storage area. The Project will be accomplished in two phases. The first phase will be the construction of the new addition. The existing building will remain in operation during the construction of the addition. Once the new addition has been completed and approved by the OWNER, the second phase, which is the renovation of the existing building, will begin. OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows: Standard Form of Agreement Between Owner and Consultant for Professional Services Page I of 12 TABLE OF CONTENTS Pnee ARTICLE1 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 ARTICLE4 - PAYMENTS TO CONSULTANT ................................................................................ ............................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ............................................... 3 4.02 Other Provisions Concerning Payments ............................................................................ ............................... 3 ARTICLE5 OPINIONS OF COST .................................................................................................... ............................... 4 5.01 Opinions of Probable Construction Cost .......................................................................... ............................... 4 5.02 Designing to Construction Cost Limit .............................................................................. ............................... 4 5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4 ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................. ............................... 4 6.01 Standards of Performance .................................................................................................. ............................... 4 6.02 Authorized Project Representatives ................................................................................... ............................... 5 6.03 Design without Construction Phase Services .................................................................... ............................... 6 6.04 Use of Documents .............................................................................................................. ............................... 6 6.05 Insurance ............................................................................................................................. ............................... 6 6.06 Termination ........................................................................................................................ ............................... 6 6.07 Controlling Law ................................................................................................................. ............................... 7 6.08 Successors, Assigns, and Beneficiaries ............................................................................. ............................... 7 6.09 Dispute Resolution ............................................................................................................. ............................... 7 6.10 Hazardous Environmental Condition ................................................................................ ............................... 7 6.11 Allocation of Risks ............................................................................................................. ............................... 8 6.12 Notices ................................................................................................................................ ............................... 8 6.13 Survival ............................................................................................................................... ............................... 8 6.14 Severability ......................................................................................................................... ............................... 8 6.15 Waiver ................................................................................................................................ ............................... 8 6.16 Headings ............................................................................................................................. ............................... 8 ARTICLE7 - DEFINITIONS .............................................................................................................. ............................... 8 7.01 Defined Terms ................................................................................................................... ............................... 8 ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS ................................................................ ............................... 11 8.01 Exhibits Included .............................................................................................................. ............................... 11 8.02 Total Agreement ............................................................................................................... ............................... I I Standard Form of Agreement Between Owner and Consultant for Professional Services Page 2 of 12 ARTICLE I -SERVICES OF CONSULTANT 1.01 Scope A. CONSULTANT shall provide the Basic and Additional Services set forth herein and in Exhibit A. B. (modified) Upon issuance of a notice to proceed by the OWNER, CONSULTANT is authorized to begin Basic Services as set forth in Exhibit A. C. (Deleted). ARTICLE 2 - OWNER'S RESPONSIBILITIES 2.01 General A. OWNER shall have the responsibilities set forth herein and in Exhibit B. ARTICLE 3 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) CONSULTANT's services and compensation under this Agreement have been agreed to for the design of the Project together with other services specified in Exhibit A. CONSULTANT's obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Deleted). C. (Modified) For purposes of this Agreement the term "day" means a calendar day of 34 hours. 3.02 Suspension A. (Deleted) B. (Modified) If CONSULTANT's services are delayed or suspended in Nohole or in part by OWNER. CONSULTANT may be entitled to equitable adjustment of rates and amounts of compensation provided for elsewhere in this Agreement to reflect. reasonable costs incurred by CONSULTANT in connection with, among other things, such delay or suspension and reactivation and the fact that the time for performance under this Agreement has been revised, unless such delay or suspension is caused in whole or in part by the CONSULTANT, its officers, agents, or employees. If CONSULTANT causes or contributes to the delay or suspension, CONSULTANT shall have no right to seek additional compensation. ARTICLE 4 - PAYMENTS TO CONSULTANT 4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT A. For Basic Services. OWNER shall pay CONSULTANT for Basic Services performed or furnished under Exhibit A, Part 1, as set forth in Exhibit C. B. For Additiamrl 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 4.0I.B, OWNER shall pay CONSULTANT for Reimbursable Expenses incurred by CONSULTANT and CONSULTANT's Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER prior to CONSULTANT incurring any expense associated therewith; otherwise, the parties hereto agree and understand that OWNER shall not be liable and CONSULTANT shall not make a claim against OWNER for any such expenses. 4.02 Other Provisions Concerning Payments A. Preparation of Invoices. Invoices will be prepared in accordance with OWNER's standard processing practices and will be submitted to OWNER monthly via mail or email by CONSULTANT, unless otherwise agreed. CONSULTANT shall supply detailed back -up information along with each invoice in order for the OWNER to effectively evaluate the fees and charges. The amount billed in each invoice will be calculated as set forth in Exhibit C. B. (Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt of the invoice and the necessary backup information. If OWNER fails to make any payment due CONSULTANT for services and expenses within 30 days after receipt of CONSULTANT's invoice and the required backup documentation therefor, the amounts due CONSULTANT will accrue interest at the rate set forth in Section 2251.035 of the Texas Government Code (or the maximum rate of interest permitted by law, if less) after the 30th day. 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. Standard Fomt of Agreement Between Owner and Consultant for Professional Services Page 3 of 12 However, it is expressly understood and agreed that CONSULTANT will not charge any interest or penalty as set forth herein on any portion of an invoice that is disputed and/or withheld in accordance with paragraph 1.02 and that CONSULTANT will not suspend services under the agreement on account of a disputed invoice or on account of monies withheld. All payments will be credited first to principal and then to interest. C. Disputed hrvoices. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion will be paid. D. Payments Upon Termination. In the event of any termination under section 6.06, CONSULTANT will be entitled to invoice OWNER and will be paid in accordance with Exhibit C for all services performed or Furnished and all Reimbursable Expenses incurred through the effective date of termination provided all instruments of service have been tendered to the OWNER. 2. (Deleted) E. (Modified) Records of C'OMV!LTANT s Costs. Records of CONSULTANT's costs pertinent to CONSULTANT's compensation under this Agreement shall be kept in accordance with generally accepted accounting practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. F. legislative Actions. In the event of legislative actions after the Effective Date of the Agreement by any level of government that impose taxes, fees, or costs on CONSULTANT's services or other costs in connection with this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a Reimbursable Expense to which a Factor of 1.0 shall be applied. Should such tares, fees, or costs be imposed, they shall be in addition to CONSULTANT's estimated total compensation. G. (Added) Indebtedness. If CONSULTANT, at any time during the term of this agreement, incurs a debt, as the word is defined in section 2 -662 of the Code of Ordinances of the City of Baytown, it shall immediately notify the OWNER's Director of Finance in writing. I f the OWNER's Director of Finance becomes aware that the CONSULTANT has incurred a debt, the OWNER's Director of Finance shall immediately notify the CONSULTANT in writing. If the CONSULTANT does not pay the debt within 30 days of either such notification, the OWNER's Director of Finance may deduct funds in an amount equal to the debt from any payments owed to the CONSULTANT under this Agreement, and the CONSULTANT waives any recourse therefor. ARTICLE 5 - OPINIONS OF COST 5.01 Opinions of Probable Construction Cost A. CONSULTANT's opinions of probable Construction Cost provided for herein are to be made on the basis of CONSULTANT's experience and qualifications and represent CONSULTANT's best judgment as an experienced and qualified professional generally familiar with the industry. However, since CONSULTANT has no control over the cost of labor, materials, equipment, or services fumished 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 Designing to Construction Cost Limit A. (Deleted). 5.03 Opinions of Total Project Costs A. (Deleted) ARTICLE 6 - GENERAL CONSIDERATIONS 6.01 Standards of Performance A. (Modified) The standard of care for all professional services performed or furnished by CONSULTANT under this Agreement will be the care and skill ordinarily used by members of the applicable disciplines, including, but not limited to, architects and professional engineers, practicing under similar circumstances at the same time and in the same locality. B. (Modified) All professionals performing services under this Agreement shall be responsible for the technical accuracy of their services and documents resulting therefrom, and OWWER shall not be responsible for discovering deficiencies therein. CONSULTANT shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in OWNER- furnished information upon which CONSULTANT is authorized to rely as provided in Section 6.01.E. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 4 of 12 C. CONSULTANT shall perform or furnish professional architectural, engineering and related services in all phases of the Project to which this Agreement applies. Such professionals shall be appropriately licensed and/or registered to practice in the State of Texas. CONSULTANT shall serve as OWNER's prime professional for the Project. CONSULTANT shall employ such professionals as CONSULTANT deems necessary to assist in the performance or furnishing of the services. CONSULTANT shall not be required to employ any professional unacceptable to CONSULTANT. D. CONSULTANT and OWNER shall comply with applicable Laws or Regulations and OWNER- mandated standards. This Agreement is based on these requirements as of its Effective Date. Changes to these requirements after the Effective Date of this Agreement may be the basis for modifications to OWNER's responsibilities or to CONSULTANT's scope of services, times of performance, or compensation. E. (Modified) OWNER shall he 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. During the Construction Phase, CONSULTANT shall not supervise, direct, or have control over Contractor's work, nor shall CONSULTANT have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. J. (Modified) CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform the Work in accordance with the Contract Documents. However, nothing contained in this paragraph shall be construed so as to absolve CONSULTANT from liability for any such failure about which CONSULTANT knew or should have known existed in the exercise of CONSULTANT's services under this Agreement. K. (Modified) CONSULTANT shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or any other persons (except CONSULTANT's own employees and its consultants for which it is legally liable) at the Site or otherwise furnishing or perforating any of the Contractor's work, or for any decision made on interpretations or clarifications of the Contract Documents given by OWNER without consultation and advice of CONSULTANT. L. (Modified) The General Conditions for any construction contract documents prepared hereunder are to be the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. 6.02 Authorized Project Representatives A. Contemporaneous with the execution of this Agreement, CONSULTANT and OWNER shall designate specific individuals to act as CONSULTANT's and OWNER's representatives with respect to the services to be performed or furnished by CONSULTANT and responsibilities of OWNER under this Agreement. Such individuals shall have authority to transmit instructions, receive information, and render decisions relative to the Project on behalf of each respective party. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 5 of 12 6.03 Design without Construction Phase Services (Deleted) 6.04 Use of Documents A. (Modified) Upon execution of this Agreement, the CONSULTANT grants to the OWNER an ownership interest in the Instruments of Service. The CONSULTANT shall obtain similar interests from its consultants consistent with this Agreement. Within seven days of any termination or expiration of this Agreement, the CONSULTANT shall be required to tender to OWNER all Instruments of Service, provided OWNER has paid all monies, excluding any disputed amount, due and owing to CONSULTANT in accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that the OWNER may use the Instruments of Service for any purposes which the OWNER sees fit, including, but not limited to, subsequent construction, reconstruction, alteration, and/or repairs of the Project. As a condition to the OWNER's use of the Instruments of Service, the OWNER hereby expressly agrees to remove the CONSULTANT's name and all references to the CONSULTANT, and its consultants from the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in connection with any reuse of the documents by the OWNER. This release of claims for the matters covered in this Paragraph 6.04.A shall be for the benefit of the CONSULTANT, its officers, and employees and sub - consultants, as well as their successors and assigns. B. (Modified) Copies of OWNER - famished 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 famished 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 scaled by the appropriate professionals. Files in electronic media format of text, data, graphics, or of other types that are famished 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 tiles 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 riles 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, ,vith the concurrence of CONSULTANT, and if commercially available. CONSULTANT shall obtain and shall require CONSULTANT's Consultants to obtain such additional Standard Form of Agreement Between Owner and Consultant for Professional Services Page 6 of 12 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 ,1. (Modified) The obligations hereunder may be terminated: 1. For cause. a. (Modified) By either party upon 30 days written notice in the event of failure by the other party to perform in accordance with the terms hereof through no fault of the terminating party: or b. By CONSULTANT upon seven days' written notice if CONSULTANT is being requested by OWNER to furnish or perform services contrary to CONSULTANT's responsibility as a licensed professional. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such substantial failure if the party receiving such notice begins, within seven days of receipt of such notice, to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt thereof: provided, however, that if and to the extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party has diligently attempted to cure the same and thereafter continues diligently to cure the same then the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of receipt of the notice. party to this Agreement and to the partners, successors, executors. administrators and legal representatives (and said assigns) of such other parry. in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor CONSULTANT may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or CONSULTANT to any Contractor, Contractor's subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and CONSULTANT and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.0 shall appear in the Contract Documents. 6.09 Not Used. 6.10 Hazardous Environmental Condition A. OWNER represents to CONSULTANT that to the 2. For convenience by OWNER effective upon the best of its knowledge a Hazardous Environmental Condition receipt of notice by CONSULTANT. does not exist. B. Not used. B. (Modified) OWNER has disclosed to the best of its knowledge and belief to CONSULTANT the existence of 6.07 Controlling Law all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including A. This Agreement is to be governed by the law of the type, quantity and location. state in which the Project is located. C. (Modified) If a Hazardous Environmental 6.08 Successors, Assigns, and Beneficiaries Condition is encountered or alleged, CONSULTANT shall have the obligation to notify OWNER on or before the next A. OWNER and CONSULTANT each is hereby bound business day of the same. and the partners, successors, executors, administrators and legal representatives of OWNER and CONSULTANT (and D. It is acknowledged by both parties that to the extent permitted by paragraph 6.08.6 the assigns of CONSULTANT's scope of services does not include any OWNER and CONSULTANT) are hereby bound to the other services related to a Hazardous Environmental Condition. In Standard Form of Agreement Between Owner and Consultant for Professional Services Page 7 of 12 the event CONSULTANT or any other parry 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 CONSULTANT's activities under this Agreement. F. If CONSULTANT's services under this Agreement cannot be performed because of a Hazardous Environmental Condition, the existence of the condition shall justify CONSULTANTS terminating this Agreement for cause on 30 days notice. 6.11 Allocation of Risks A. (Modified) Indemnification. See Exhibit K. 6.12 Notices A. (Modified) Any notice required under this Agreement will be in writing, addressed to the appropriate party at its address on the signature page and given personally, or by registered or certified mail postage prepaid, or by a commercial courier service. Additionally, notices may be given via facsimile or by electronic mail if such notice is also given personally, or by registered or certified mail or by a commercial courier service. All notices shall be effective upon the date of receipt. 6.13 Survival A. (Modified) All express representations, indemnifications, and limitations of liability included in this Agreement will survive its completion or termination for any reason. 6.14 Severability A. Any provision or part of the Agreement held to be void or unenforceable under any Laws or Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONSULTANT, who agree that the Agreement shall be reformed to replace such stricken provision or pan thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 6.15 Waiver A. Non- enforcement of any provision by either party shall not constitute a waiver of that provision, nor shall it affect the enforceability of that provision or of the remainder of this Agreement. 6.16 Headings A. The headings used in this Agreement are for general reference only and do not have special significance. ARTICLE 7 - DEFINITIONS 7.01 Defined Terms A. Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which are applicable to both the singular and plural thereof. 1. Addenda --W riven or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 2. Additional ,Services- -The services to be performed for or furnished to OWNER by CONSULTANT in accordance with Exhibit A, Pan 2 of this Agreement. 3. :Igreemem - -1bis "Standard Form of Agreement between OWNER and CONSULTANT for Professional Services;' including those Exhibits listed in Article 8 hereof. 4. :Ipplication for Payment —The form acceptable to CONSULTANT which is to be used by Contractor in requesting progress or final payments for the completion of its Work and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. :Isbestor- -Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 8 of 12 6. Basic Senvices- -The services to be performed for or furnished to OWNER by CONSULTANT in accordance with Exhibit A, Part 1. of this Agreement. 7. laic- -The offer or proposal of the bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 8. Bidding Documents --The advertisement or invitation to Bid. instructions to bidders, the Bid form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda, if any. 9. Change Order - -A document recommended by CONSULTANT, which is signed by Contractor and OWNER to authorize an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Construction Agreement. 10. Construction :Igreement —The written instrument which is evidence of the agreement, contained in the Contract Documents, between OWNER and Contractor covering the Work. 11. Construction Contract —The entire and integrated wrinen agreement between the OWNER and Contractor conceming the Work. 12. Construction Cost --The cost to OWNER of those portions of the entire Project designed or specified by CONSULTANT. Construction Cost does not include costs of services of CONSULTANT or other design professionals and consultants, cost of land, rights -of -way, or compensation for damages to properties, or OWNER's costs for legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project, or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this Agreement. Construction Cost is one of the items comprising Total Project Costs. 13. (Modified) Contract Docrmrents -- Documents that establish the rights and obligations of the parties engaged in construction and include the Construction Agreement between OWNER and Contractor and all documents referenced therein, Addenda (which pertain to the Contract Documents), Contractor's Bid (including documentation accompanying the Bid and any post -Bid documentation submitted prior to the notice of award) when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds, appropriate certifications, insurance documents the General Conditions. the Supplementary Conditions, the Specifications and the Drawings as the some tore more specifically identified in the Construction Agreement, together with all Written Amendments. Change Orders, Work Change Directives, Field Orders, and CONSULTANT's written interpretations and clarifications issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price- -The moneys payable by OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in the Construction Agreement. 15. Contract Tunes- -The numbers of days or the dates stated in the Construction Agreement to: (i) achieve Final Completion, and (ii) complete the Work so that it is ready for Final payment as evidenced by CONSULTANT's written recommendation of final payment. 16. Contraclor—An individual or entity with whom OWNER enters into a Construction Agreement. 17. Correction Period —The time after Final Completion during which Contractor must correct, at no cost to OWNER, any Defective Work, normally one year after the date of Final Completion or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or specific provision of the Contract Documents. 18. Defective —An adjective which, when modifying the word Work, refers to Work that is unsatisfactory, faulty, or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to CONSULTANT's recommendation of final payment. 19. Documents —Data, reports, Drawings, Specifications, Record Drawings, and other deliverables, whether in printed or electronic media format, provided or furnished in appropriate phases by CONSULTANT to OWNER pursuant to this Agreement. 20. Drcm-ings —That part of the Contract Documents prepared or approved by CONSULTANT which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings are not Drawings as so defined. 21. I Qeclive Date of lite Construction Jgreenronl- -The date indicated in the Construction Agreement on which it becomes elTective, but if no such date is indicated, it means the date on which the Construction Agreement is signed and delivered by the last of the two parties to sign and deliver. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 9 of 12 22. E©ectire Dane o% the :lgreenrent- -The date indicated in this Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 23. CO.,N'SfiLT.IN s Consultants -- Individuals or entities having a contract with CONSULTANT to furnish services with respect to this Project as CONSULTANT's independent professional associates, consultants, subcontractors, or vendors. The term CONSULTANT includes CONSULTANT's Consultants. 24. Field Order - -A written order issued by CONSULTANT which directs minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 25. Final Completion shall mean that all work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to subcontractors have been made, all documentation and warranties have been submitted, all closeout documents have been executed and approved by the OWNER, and the Project has been finally accepted by the OWNER. 26. General Conditions -That part of the Contract Documents which sets forth terms, conditions, and procedures that govern the Work to be performed or furnished by Contractor with respect to the Project. 27. Hazardous Environmental Condition —The presence at the Site of Asbestos. PCB's, Petroleum, hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hazardous Waste--The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 29. Lutes and Regulations, Lairs or Regrdationr- -Any and all applicable laws, rules, regulations, ordinances, codes, standards, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 30. PCB's -- Polychlorinated biphenyls. 31. Petroleum -- Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non - Hazardous Waste and crude oils. 32. Radioactive .tlaterials -- 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 Drwvings- -The Drawings as issued for construction on which the CONSULTANT, upon completion of the Work, has shown changes due to Addenda or Change Orders and other information which CONSULTANT considers significant based on record documents furnished by Contractor to CONSULTANT and which were annotated by Contractor to show changes made during construction. 34. Reimbursable Expenses-The expenses incurred directly by CONSULTANT in connection with the performing or furnishing of Basic and Additional Services for the Project for which OWNER shall pay CONSULTANT as indicated in Exhibit C. 35. Resident Project Representative —The authorized representative of CONSULTANT, if any, assigned to assist CONSULTANT at the Site during the Construction Phase. The Resident Project Representative will be CONSULTANT's agent or employee and under CONSULTANT's supervision. As used herein, the term Resident Project Representative includes any assistants of Resident Project Representative agreed to by OWNER. The duties and responsibilities of the Resident Project Representative are as set forth in Exhibit D. 36. Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 37. Shop Drcnvings- -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 casements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39. Speviitications- -That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. Standard Form of Agreement Between Owner and Consultant for Professional Services Page 10 of 12 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. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A, "CONSULTANT's Services," consisting of seven (7) pages. 41. Supplementary Conditions —That part of the Contract B. Exhibit B, "OWNER's Responsibilities," consisting Documents which amends or supplements the General of two (2) pages. Conditions. 42. (Modified) Total Project Costs --The sum of the Construction Cost, allowances for contingencies, the total costs of services of CONSULTANT or other design professionals and consultants, cost of land, rights -0f - -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. {fork- -The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents with respect to this Project. Work includes and is the result of performing or furnishing labor, services, and documentation necessary to produce such construction and fumishing, installing, and incorporating all materials and all equipment into such construction, all as required by the Contract Documents. 44. Work Change Directive - -A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the CONSULTANT, ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 45. 11'ritten :hnen&nen1 - -A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non - architectural or non - technical rather than strictly construction - related aspects of the Contract Documents. C. Exhibit C, "Payments to CONSULTANT for Services and Reimbursable Expenses," consisting of two (2) pages. D. Exhibit D, "Duties, Responsibilities and Limitations of Authority of Resident Project Representative, " is not used. E. Exhibit E, "Notice of Acceptability of Work." is not used. F. Exhibit F, "Construction Cost Limit," is not used. G. Exhibit G, "Insurance," consisting of two (2) pages. H. Exhibit H, "Dispute Resolution," is not used. Exhibit I, "Allocation of Risks," is not used. J. Exhibit 1, "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 I to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and CONSULTANT and supersedes all prior written or oral understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed written instrument. This Agreement along with the exhibits shall be read and construed as the same Agreement. Standard Form of Agreement Between Owner and Consultant for Professional Services Page I I of 12 IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the Effective Date of which is indicated on page I. OWNER: CITY OF BAYTOWN CONSULT &NT: PIERCE GOODWIN ALEXAN & LINVILLE, INC. Signature: Printed Name: Garrison C. Btumback Title: City Manager Date Signed: Address for giving notices: P.O. Box 424 Baytown, Texas 77522 Designated Representative (paragraph 6.02.A): Name: Jose A. Pastrana, P.E. Title: Director of Engineering Phone Number: (281) 420 -7154 Facsimile Number. (281) 420 -6586 E -Mail Address: jose.pastrana@baytown.org Signature: PrinA Name: Title: Date Signed: 9.27 - IV Address forgiving notices: 3131 Briar Park, Suite 200 Houston, Texas 77042 Designated Representative (paragraph 6.02.A): MU(,., BomejEtnw Title: A'5'50C-IAFM f'aa t4C4 inn'=+ Phone Number: 713 — I (v8 - 13 58 Facsimile Number. It 3 - 1(06 — 933 3 E -Mail Address: �yL,r— e3'tj- 4" Standard Form of Agreement Between Owner and Consultant for Professional Services Page 12 of 12 This is EXHIBIT A. consisting of 7 pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT �&— CONSULTANT'S Services Article I of the Agreement is amended and supplemented to include the following agreement of the parties. CONSULTANT shall provide Basic and Additional Services as set forth below, PART I -- BASIC SERVICES (Modified) A 1.01 Schematic Design Phase A. CONSULTANT shall: 1. Consult with OWNER to define and clarify OWNER's requirements for the Project and available data. 2. Advise OWNER as to the necessity of OWNER's providing data or services of the types described in Exhibit B, which arc not part of CONSULTANT's Basic Services, and assist OWNER in obtaining such data and services. 3. (Modified) Identify, consult with, and analyze requirements of governmental authorities having jurisdiction to approve the portions of the Project designed or specified by CONSULTANT, including, but not limited to, mitigating measures identified in the environmental assessment (if any) and the Texas Accessibility Standards of the Architectural Barriers Act. 4. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER, recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's requirements for the Project. 5. (Modified) Attend meetings with OWNER to receive input into OWNER'S requirements for the Project and evaluation of potential solutions available to OWNER and to discuss and finalize design criteria and acquire pertinent information regarding the Project. 6. (Modified) Perform or provide the following additional Schematic Design Phase tasks or deliverables: a. Provide field verification and documentation of existing conditions 7. (Modified) Prepare a summary report (the "Report ") which will contain schematic layouts illustrating the scale and relationship of the components, sketches, schedule of events, preliminary site plans, building plans, sections and elevations, and conceptual design criteria with appropriate exhibits to indicate the agreed -to requirements, considerations involved, and those alternate solutions available to OWNER which CONSULTANT recommends. Preliminary selections of major building systems and construction materials shall be noted on the drawings or otherwise described in writing in the Report. This Report will be accompanied by CONSULTANT's opinion of Total Project Costs for each solution which is so recommended for the Project with each component separately itemized, including the following, which will be separately itemized: opinion of probable Construction Cost, allowances for contingencies and for other items and services included within the definition of Total Project Costs. Page I of 7 Pages (EXIIIBIT A - Scope of Work) S. Furnish sir (6) review copies of the Draft Report to OWNER within twenty-one (21) calendar days of authorization to begin services and review it with OWNER. 9. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish live (5) Final copies of the revised Report to the OWNER within ten (10) calendar days after completion of reviewing it with OWNER. B. (Modified) CONSULTANT's services under the Schematic Design Phase will be considered complete on the date when the final copies of the revised Report has been delivered to and accepted by OWNER. A 1.02 Design Development Phase A. Upon written authorization from OWNER, CONSULTANT shall: (Modified) On the basis of the above acceptance, direction, and authorization, prepare final Drawings indicating the scope, relationships, forms size and appearance of the Project by means of plans, sections and elevations, construction details and specifications together with the extent and character of the Work to be performed and furnished by Contractor, including the quality levels for major materials and Project systems. Specifications will be prepared, where appropriate, in conformance with the 16- division format of the Construction Specifications Institute or other format agreed to in writing by OWNER and CONSULTANT. 2. Provide technical criteria, written descriptions, and design data for OWNER's use in filing applications for permits from or approvals of governmental authorities having jurisdiction to review or approve the final design of the Project and assist OWNER in consultations with appropriate authorities. 3. Advise OWNER of any adjustments to the Project schedule and the opinion of probable Construction Cost and any adjustments to Total Project Costs known to CONSULTANT, itemized as provided in A1.0I.A.7. 4. Perform or provide the following additional final Design Phase tasks or deliverables: a. Acquire all agency approvals of the final design and the Project. b. Survey: Boundary and Topographic Survey, including Utilities, of the block and surrounding streets where the existing EMS building stands, signed and sealed by a registered surveyor in the State of Texas. c. Geotechnical Survey: two (2) 20 foot (20) borings for the building and two (2) 5 foot (5') borings for the site paving, and final geotechnical report signed and sealed by an engineer registered in the State of Texas. d. Phase I Environmental: Report detailing the findings of interior and exterior asbestos and lead paint survey, including minimal sampling, collection and analysis for the existing EMS building. 5. Make appropriate recommendations to the OWNER to adjust the Project size, quality or budget if at any time the CONSULTANT's estimate of the probable Construction Cost or Total Project Costs exceed the OWNER's budget. 6. Provide three full -size sets of documents for the OWNER's review and comment within twenty-one (2 1) days of authorization to begin services and review it with OWNER. 7. Revise the documents in response to OWNER's and other parties' comments, as appropriate, and furnish five (5) final copies of the revised documents to the OWNER within ten (10) days after completion of reviewing it with OWNER B. (Modified) CONSULTANT's services under the Design Development Phase will be considered complete on the date when the final copies of the revised documents have been delivered to and accepted by OWNER. Page 2 of 7 Pages (EXHIBIT A - Scope of Work) A 1.035 Coialruction Document Phase A. Afler acceptance by OWNER of the deliverables in the Design Development Phase and the revised opinion of probable Construction Cost as determined in the Design Development Phase. but subject to any OWNER. directed modifications or changes in the scope, extent, character, or design requirements of or for the Project. and upon written authorization from OWNER. CONSULTANT shall: I. Prepare and furnish three (3) copies of the Bidding Documents, which shall include Drawings and Specifications that establish in detail the quality levels of materials and project systems required for construction, for review and approval by OWNER. its legal counsel, and other advisors, as appropriate, and assist OWNER in the preparation of other related documents. 2. Update the opinion of probable Construction Cost and project schedule at 50% completion and 95% completion of Construction Documents. 3. (Added) Prepare additional line items in the Bid Tabulations, assuming the project documentation, including plans and specifications, were originally prepared to reflect these items, as reasonably requested by OWNER, so long as this, these request(s) is made prior to the preparation of the final bid documents. 4. Submit fifteen (15) final copies of the Bidding Documents and a revised opinion of probable Construction Cost to OWNER within forty -two (42) calendar days afler authorization to proceed with this phase. B. In the event that the Work designed or specified by CONSULTANT is to be performed or furnished under more than one prime contract as determined by the OWNER. OWNER and CONSULTANT shall, prior to commencement of the Bidding or Negotiating Phase, develop a schedule for performance of CONSULTANT's services during the Bidding or Negotiating Phase and the Construction Phase in order to sequence and coordinate properly such services as are applicable to the work under such separate prime contracts. C. (Modified) CONSULTANT's services under the Construction Document Phase will be considered complete on the date when the submittals required by paragraph A 1.025.A.4 have been delivered to and accepted by OWNER. A 1.03 Bidding or Negotiating Phase A. Afler acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Construction Document Phase, and upon written authorization by OWNER to proceed, CONSULTANT shall: I. Assist OWNER in advertising for and obtaining bids for the Work and provide 15 sets of plans and specifications. 2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents. 3. Consult with OWNER as to the acceptability of subcontractors, suppliers, and other individuals and entities proposed by Contractor for those portions of the Work as to which such acceptability is required by the Bidding Documents. 4. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables: a. Recommend award to the OWNER. b. Attend the Council meeting for award of the contract for the Project. 5. (Modified) Anend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. Page 3 of 7 Pages (E\ It I BI'r A - Scope of Work) G. (.added) Assist in connection with Bid protests. rebidding, or re- negotiating contracts for construction, materials, equipment, or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A1.04 Convtnrction Phase A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER, CONSULTANT shall: General :Idminisrration of Constnuction Contract. Consult with OWNER and act as OWNER's representative as provided in the General Conditions. The extent and limitations of the duties, responsibilities and authority of CONSULTANT as assigned in said General Conditions shall not be modified, except as CONSULTANT may otherwise agree in writing. All of OWNER's instructions to Contractor will be issued through CONSULTANT, who shall have authority to act on behalf of OWNER in dealings with Contractor to the extent provided in this Agreement and said General Conditions except as otherwise provided in writing. 3. (Modified) Selecting Independent Testing laboratory. Assist OWNER in the selection of an independent testing laboratory to perform the services identified in paragraph B2.01, if any. 3. Pre- Constntction Conference. Participate in a Pre- Construction Conference prior to commencement of Work at the Site. 4. Baselines and Benchmarks. As appropriate, establish control and temporary benchmarks for locating the Work which in CONSULTANT's judgment are necessary to enable Contractor to proceed. 5. I isits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as CONSULTANT and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by CONSULTANT, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on CONSULTANT's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations, CONSULTANT will determine if Contractor's work is proceeding in accordance with the Contract Documents, and CONSULTANT shall keep OWNER informed of the progress of the Work. b. (Modified) The purpose of CONSULTANT's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable CONSULTANT to better carry out the duties and responsibilities assigned to and undertaken by CONSULTANT during the Construction Phase, and, in addition, by the exercise of CONSULTANT's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. CONSULTANT shall not, during such visits or as a result of such observations of Contractor's Page 4 of 7 Pages (EXHIBIT A - Scope of Work) work in progress, supervise, direct, or have control over Contractor's work, nor shall CONSULTANT have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work, or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. G. (Modified) Defectitiv Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, CONSULTANT believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 7. Clariftcalions crncllnterpretations; Field Orders. Issue necessary clarifications and interpretations of the Contract Documents as appropriate to the orderly completion of Contractor's work. Such clarifications and interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents. CONSULTANT may issue Field Orders authorizing minor variations from the requirements of the Contract Documents. 8. Change Orders and Work Change Directitrs. Recommend Change Orders and Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as required. 9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to Shop Drawings and Samples and other data which Contractor is required to submit, but only for conformance with the inforTnation given in the Contract Documents and compatibility with the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. Such reviews and approvals or other action will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. CONSULTANT has an obligation to meet any Contractor's submittal schedule that has earlier been acceptable to CONSULTANT. 10. Substilutes and "or- equal. " Evaluate and determine the acceptability of substitute or "or- equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. 11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. CONSULTANT's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. CONSULTANT shall be entitled to rely on the results of such tests. 12. (Modified) Disagrernirnts heturrn 011:%'F.R crud Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions. CONSULTANT shall be fair and not show partiality to OWNER or Contractor. 13. Application for Payment. Based on CONSULTANT's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: Page S of 7 Pages (EXHIBIT A - Scope of Work) a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute CONSULTANT's representation to OWNER, based on such observations and review, that, to the best of CONSULTANT's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price work, CONSULTANT's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of CONSULTANT contained in paragraph A 1.04.A.5.a are expressly subject to the limitations set forth in paragraph A 1.04.A.5.b and other express or general limitations in this Agreement and elsewhere. b. By recommending any payment. CONSULTANT shall not thereby be deemed to have represented that observations made by CONSULTANT to check the quality or quantity of Contractor's work as it is performed and furnished have been exhaustive, extended to every aspect of Contractor's work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract Documents. Neither CONSULTANT's review of Contractor's work for the purposes of recommending payments nor CONSULTANT's recommendation of any payment including final payment will impose on CONSULTANT responsibility to supervise, direct, or control Contractor's work in progress or for the means, methods, techniques, sequences, or procedures of construction or safety precautions or programs incident thereto, or Contractor's compliance with Laws and Regulations applicable to Contractor's furnishing and performing the Work. It will also not impose responsibility on CONSULTANT to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or to determine that title to any portion of the work in progress, materials, or equipment has passed to OWNER free and clear of any liens, claims, security interests, or encumbrances, or that there may not be other matters at issue between OWNER and Contractor that might affect the amount that should be paid. 14. Contractor's Completion Documents. a. (Modified) Receive and review maintenance and operating instructions, schedules, and guarantees as prepared by the Contractor in accordance with the Contract Documents. CONSULTANT will compile this information as provided by Contractor, and deliver three (3) copies of the same to OWNER. b. (.Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted and required by the Contract Documents, certificates of inspection, tests and approvals, Shop Drawings, Samples and other data approved as provided under paragraph A 1.04.A.9, and the annotated record documents which are to be assembled by Contractor in accordance with the Contract Documents to obtain final payment. The extent of such CONSULTANT's review will be limited as provided in paragraph A 1.04.A.9. c. CONSULTANT shall transmit these documents to OWNER within thirty days of receipt of documents from Contractor. d. (Added) Preparing and furnishing to OWNER Record Drawings electronically in a format approved by the OWNER and on mylar showing appropriate record information based on Project annotated record documents received from Contractor. Page 6 of 7 Pages (EXHIBIT A - Scope of Work) 15. inspection. Promptly after notice from Contractor that Contractor considers the entire Work ready for its intended use, in company with OWNER and Contractor, conduct an inspection to determine if the Work is finally complete. CONSULTANT shall prepare a punch -lists as necessary for the Work to achieve final completion: 16. {Modified) Final Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment. CONSULTANT shall also provide a notice in the form anached hereto as Exhibit E (the "Notice of Acceptability of Work ") that to the best of CONSULTANT's knowledge, information and belief and upon the exercise of CONSULTANT'S due diligence, the Work is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractors. If the Project involves more than one prime contract, Construction Phase services may be rendered at different times in respect to the separate contracts. C. Limitation of Responsibilities. CONSULTANT shall not be responsible for the acts or omissions of any Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or furnishing any of the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform or furnish the Work in accordance with the Contract Documents. PART 2 — ADDITIONAL SERVICES A2.01 A&htional Services Requiring OWNER's Awhori.ation in Advance A, Upon OWNER's prior written request, CONSULTANT shall successful perform the following additional services: 1. Phase II Environmental, which shall provide more extensive sampling and analysis if environmental hazards are found in the Phase I Environmental Survey. A2.02 Required AtIditional Sen -ices Not Included Page 7 of 7 Pages (EXH I BIT A - Scope of Work) 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 An- CONSULTANT OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall: A. Provide CONSULTANT with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability, and any budgetary limitations; and furnish copies 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 upon a specific request any other available information pertinent to the Project, including reports and data relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in which the existing data and documentation will be provided shall be at the sole discretion of the OWNER. C. (Modified) Following CONSULTANT's assessment of initially - available Project information and data and upon CONSULTANT's written request, fumish or otherwise make available such additional available Project related information and data as is reasonably required to enable CONSULTANT to complete its Basic and Additional Services. 1. (Deleted). 2. (Deleted). 3. (Deleted). 4. (Deleted). 5. (Deleted). 6. (Deleted). D. (Deleted). E. (Modified) Authorize CONSULTANT to provide Additional Services as set forth in Part 2 of Exhibit A of the Agreement as the OWNER determines is necessary. F. 0-lodified) Arrange for access to and make all provisions for CONSULTANT to enter upon public property as required for CONSULTANT to perform services under the Agreement. G. Examine all alternate solutions, studies, reports, sketches, Drawings. Specifications, proposals, and other documents presented by CONSULTANT (including obtaining advice of an attorney, insurance counselor, and other Page I oft Pages (Exhibit B — OWNER's Responsibilities) advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. Fl, (Deleted). I. (Deleted). J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review, value engineering, and constructability review. K. Deleted L. Deleted M. Deleted N. Deleted Page 3 of 2 Pages ( Exhibit B — OWNER's Responsibilities) This is EXHIBIT C, consisting of 2 pa-es, referred to in and pan of the Agreement bet"een OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT —Et t Pavntents to CONSULTANT for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of the parties: AR I'ICLE -t -- PAYMENTS TO T1 IF CONSULTANT C4.01 For l3ersic Services Having : I Determined Scope —C'ost not to F-rc ee d Method (f'Pavine tt A. OWNER shall pay CONSULTANT for Basic Services set firth in Exhibit A as follows: I. (Modified) A cost not to exceed amount of S66,250 based upon the rate schedule, which is attached as Appendix I of Exhibit C and incorporated herein for all intents and purposes. This amount does not include those CONSULTANT'S Consultant's charges as provided below in this Article -1, Subparagraph C4.05, and will be distributed at the completion of each of the phase in the following amount: I . Schematic Design ....................... S 10,100.00 2. Design Development ................... S 13 250.00 3. Construction Document............ S 26,500.00 a. Bidding Negotiating ...................S 3,350.00 5. Construction Phase ..................... S 13,050.00 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 %kriting b} the OWNER. 3. The cost not to exceed includes compensation for CONSULTANT's services and services of CONSULTANT's Consultants (with the exception of those outlined in paragraph C4.05), if any. Appropriate amounts have been incorporated in the cost not to exceed to account for labor, overhead, and profit. -L. Deleted. 5. 1'he portion of the amount billed for CONSULTANT's services will be based upon total services actually completed during the billing period, which shall be a calendar month. Invoices shall be tendered no more often than once a month for all of the services performed during the applicable month. C4.02 For Basic .Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor ,llethod of Pcivinent A. (Not Used). 04.03 For .1 dditional 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 based upon the actual hours worked and the rate schedule, which is attached as Appendix I of Exhibit C and incorporated herein for all intents and purposes plus Reimbursable Expenses. Additional Services shall not be performed without the prior written consent of the OWNER. C4.04 For Reimbursable F_tpenses A. (Modified) When not included in compensation for Basic Services under paragaph C4.01. OWNER shall pay CONSULTANT for Reimbursable Expenses at the rate set firth in Appendix 2 of this Exhibit C. Before the OWNER shall be liable for Page I of-` Paues (Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method) any reimbursable expenses, the CONSULTANT Landscape must obtain prior written approval of the OWNER 1. Schematic Desian .......................5 0.00 of' any expense that exceeds S1,000 for which the 2. Design Development ....................S 2,000.00 CONSULTANT seeks reimbursement. 3. Construction Document ...............5 2,500.00 Reimbursable Expenses shall not exceed 5750 4. Bidding/Negotiating ....................5 0.00 without the prior written consent of the OWNER. 5. Construction Phase .......................5 500.00 13. (Modified) Reimbursable Expenses include the following categories: mileage., parking tolls, long distance, reproduction of Drawings, Specifications, Bidding Documents, and similar Project - related items in addition to those required under Exhibit A, and, if authorized in advance by OWNER. C. The amounts payable to CONSULTANT for Reimbursable Expenses will be the Project - related internal expenses actually incurred or allocated by CONSULTANT, plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of (I.10). D. Deleted. I. (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. 04.05 For- CONSULT.•INT's Consuhant's Charges A. (Modified) Whenever compensation to CONSULTANT herein is stated to include charges of CONSULTANT's Consultants, those charges shall be the amounts billed by CONSULTANT's Consultants to CONSULTANT times a Factor of (1.10). The consultant charges shall not exceed the following amounts specified for each of the following services, unless approved in writing by the OWNER. The charges include the factor. and shall not exceed the following without prior written consent of the OWNER. Structural I. Schematic Design ......................... S 3.100.00 2. Design Development ..................... S2,800.00 3. ConStrUCtiOn DOCnment ................ S5,600.00 4. Bidding / Negotiating .....................5 700.00 5. Construction Phase ....................... S2,800.00 it -1 E P I. Schematic Design ......................S 1,800.00 2. Design Development .................. S 2,400.00 3. Construction Document ............. S 4,800.00 4. Bidding /Negotiating ..................5 600.00 5. Construction Phase .................... S 2,400.00 Surveying 1. Design Development ....................5 7.000.00 Geotechnical 1. Design Development ....................5 5,000.00 Environmental Phase I I. Design Development ....................5 4,000.00 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. (Deleted). 4.07 Factors (Deleted) C4.08 Other Provisions Concerning Putlment A. Progress Pa}nnents. 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 in Appendix I for the cumulative hours charged to the Project during the billing period by all of CONSULTANT's employees, plus Reimbursable Expenses and CONSULTANT's Consultant's charges, if any. Page 2 of 2 Pages (Exhibit C - All Other Services/Charges -- Cost not to Fcceed Method of Payment) APPENDIX I OFEXHIBITC— HOURLY RATES All services are to be billed on an hourly basis based on time and materials and based upon the following rates: Staff Category Hourly Rate Director...................................................................... ............................... S195.00 Principal..................................................................... ............................... 5185.00 ProjectM anager ......................................................... ............................... S180.00 Senior Project Architect, Designer, Engineer ............ ............................... S167.00 Project Architect. Designer Engineer ......................... ............................... S145.00 Architect, Designer, Engineer ............ ............................... ........................5140.00 Assistant Architect, Designer, Engineer .................... ............................... S110.00 SpacePlanner ............................................................. ............................... S100.00 Assistant Space Planner .............................................. ..............................5 85.00 SeniorEngineer .......................................................... ............................... S185.00 ProjectEngineer. ................................ ............................... ........................5180.00 Construction Administrator ........................................ ............................... $155.00 Construction Inspector ............................................... ............................... S120.00 Administration........................................................... ............................... S 85.00 Page I of I Pages (Appendix I of Exhibit C — Hourly Rates) APPENDIX 2 OF EXHIBIT C — REIMBURSEMENT OF COSTS Reproduction and Deliveries: Cost plus 10% Mileage: IRS Rate Page I of I Pages (Appendix 2 of Exhibit C — Reimbursement of Costs) This is EXHIBIT G. consisting of ? pages, referred to in and part of the Agreement between OWNER and CONSULTANT for Professional Services dated Initial: OWNER CONSULTANT Insurance ZT- 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 CONSULTANTs 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: 51,000,000 Products & Completed Operations: 31,000,000 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: S1,000,000 a. Coverage for "Any Auto:' Workers' Compensation Insurance Statutory Limits Employer's Liability S500,000 Waiver of Subrogation required Errors & Omissions (E &O) Limit: S1,000,000 a. For all engineers, and/or design companies. Page I of 3 Pages (Exhibit G - Insurance) 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. Alf Best Rating of B +:VII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. c. Liability policies will be on occurrence form. E & O can be on claims -made form. d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. e. Upon request of and without cost to OWNER, certified copies of all insurance policies and /or certificates of insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to OWNER's representative prior to execution of this agreement. f. Upon request of and without cost to OWNER. loss runs (claims listing) of any and/or all insurance coverage shall be furnished to OWNER's representative. Page Z of ? Pages (Exhibit G - Insurance) This is EXHIBIT K. consisting of 3 pages, referred to in and pan of the Agreement between OWNER And CONSULTANT for Professional Services dated Initial: OWNER CONSULT. Indemnification CONSULTANT AGREES TO AND SHALL INDEMNIFY AND HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS, AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS "OWNER ") FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE CONSULTANT EXERCISES CONTROL (COLLECTIVELY CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH CONSULTANT AND OWNER, THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND PROTECT OWNER FROM THE CONSEQUENCES OF CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT, JOINT OR SOLE NEGLIGENCE AS WELL AS THE CONSULTANT'S PARTIES' INTENTIONAL TORTS, INTELLECTUAL PROPERTY 1NFRINGENIENTS, AND FAILURES TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT APPLY, HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL INJURY, DEATH, OR PROPERTY DAINIAGE OF PERSONS THAT IS CAUSED BY OR RESULTS FROM THE NEGLIGENCE OF ANY PERSON OTHER THAN THE CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM WHICH THE OWNER IS INDEMNIFIED, CONSULTANT FURTHER AGREES AND COVENANTS TO DEFEND THE ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE SHALL SURVIVE THE TERMINATION AND /OR EXPIRATION OF THIS AGREEMENT. By this Agreement, the OWNER does not consent to litigation or suit, and the OWNER hereby expressly revokes any consent to litigation that it may have granted by the terms of this Contract or any other contract or agreement, any charter, or applicable state law. Nothing herein shall be construed so as to limit or waive OWNER'S sovereign immunity. CONSULTANT assumes full responsibility for its work performed hereunder and hereby releases, relinquishes and discharges OWNER, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character for any injury to or death of any person and /or any loss of or damage to any property that is caused by or alleged to be caused by, arising out of, or in connection with CONSULTANT's work to be performed hereunder. This release shall apply with respect to CONSULTANT's work regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance. The protections afforded to OWNER in this Exhibit K shall control and supersede any apportionment of liability or release of liability contained elsewhere in the Contract Documents. Furthermore, the provisions contained in this Exhibit "K" shall survive the termination and /or expiration of this Agreement.