Ordinance No. 11,425ORDINANCE NO. 11.42
AN ORDINANCE OF THE CITY COUNCIL OF TI IE CITY OF BAYTOWN. TEXAS,
AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND
THE CITY CLERK TO ATTEST TO THE PROFESSIONAL SERVICES
AGREEMENT WITH PIERCE GOODWIN ALEXANDER & LINVILLE, INC., FOR
PROFESSIONAL SERVICES FOR THE DESIGN OF THE CITY HALL SOUTH SIDE
RENOVATION PROJECT: AUTHORIZING PAYMENT BY TI -fE CITY OF
BAYTONVN IN AN AMOUNT NOT TO EXCEED ONE HUNDRED SIXTEEN
THOUSAND AND NO /100 DOLLARS ($116.000.00); MAKING OTHER
PROVISIONS RELATED THERETO: AND PROVIDING FOR THE EFFECTIVE
DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City, of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk to attest to the Processional Services Agreement
with Pierce Goodwin Alexander & Linville, Inc., for professional services for the design of the City Hall
South Side 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 SIXTEEN
THOUSAND AND NO /100 DOLLARS ($116,000.00) for professional services in accordance with the
agreement authorized in Section 1 hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by TWENTY -FIVE THOUSAND AND NO /100 DOLLARS ($25,000.00) or less.
provided that the amount authorized in Section 2 hereof may not be increased by more than twenty -five
percent (25 %).
INTRODUCED, READ. and PASSED by the affirmative vote
Baytown, this the 26`h day of August, 2010.
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the City Council of the City of
CARLOS, Mayor
STANDARD FORM OF AGREEMENT
BETWEEN OWNER AND CONSULTANT
FOR
PROFESSIONAL SERVICES
THIS AGREEMENT effective as of the! day of August, 2010 ("Effective Date").
Between
The City of Baytown ("OWNER")
and
Pierce Goodwin Alexander & Linville, Inc. ("CONSULTANT").
OWNER intends to engage CONSULTANT to perform architectural services related to the final design services
for a renovation to the south side of the existing City Hall building (the "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 3,500 s.f. of major renovation and 8,500 s.f of minor renovation to the south
side of the existing City Hall building. The Project will consist of reconfiguring the existing building, including the
Engineering, Planning & Development, Human Resources and ITS Departments as well as the main lobby. The
former Legal Department area will be converted into a public reception desk and expansion of the Planning &
Development and Human Resources Departments. Some additional space will be demolished and renovated to
accommodate planned spaces for the Engineering Department. The ITS Department remains nearly as -is. In the
areas of major renovation, electrical plumbing, HVAC and non -bearing walls will be demolished to accommodate
the new proposed construction. In addition, the fire sprinkler system will be extended from the new City Hall
addition to cover the lobby and the entire south side of the building. New carpet, base paint and ceiling tile will be
provided for all offices, and new paint will be provided on the walls in main corridors.
OWNER and CONSULTANT in consideration of their mutual covenants as set forth herein agree as follows:
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 1 of 12
TABLE OF CONTENTS Page
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
ARTICLE 4 - PAYMENTS TO CONSULTANT ................................................................................ ............................... 3
4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ................ ............................... 3
4.02 Other Provisions Concerning Payments ............................................................................ ............................... 3
ARTICLE5 - OPINIONS OF COST .................................................................................................... ............................... 4
5.01 Opinions of Probable Construction Cost .......................................................................... ............................... 4
5.02 Designing to Construction Cost Limit .............................................................................. ............................... 4
5.03 Opinions of Total Project Costs ........................................................................................ ............................... 4
ARTICLE 6 - GENERAL CONSIDERATIONS ................................................................................. ............................... 4
6.01 Standards of Performance ................................................................................................... ..............................4
6.02 Authorized Project Representatives ................................................................................... ............................... 5
6.03 Design without Construction Phase Services .................................................................... ............................... 5
6.04 Use of Documents .............................................................................................................. ............................... 5
6.05 Insurance ............................................................................................................................. ............................... 6
6.06 Termination ........................................................................................................................ ............................... 6
6.07 Controlling Law ................................................................................................................. ............................... 7
6.08 Successors, Assigns; and Beneficiaries ............................................................................. ............................... 7
6.09 Dispute Resolution ............................................................................................................. ............................... 7
6.10 Hazardous Environmental Condition ................................................................................ ............................... 7
6.11 Allocation of Risks .......................... .. .. 8
6.12 Notices ................................................................................................................................ ............................... 8
6.13 Survival ............................................................................................................................... ............................... 8
6.14 Severability ......................................................................................................................... ............................... 8
6.15 Waiver ................................................................................................................................ ............................... 8
6.16 Headings ............................................................................................................................. ............................... 8
ARTICLE7 - DEFINITIONS .............................................................................................................. ......I........................ 8
7.01 Defined Terms ................................................................................................................... ............................... 8
ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS .............................................................. . ......... :...................... 11
8.01 Exhibits Included .............................................................................................................. ............................... 11
8.02 Total Agreement ............................................................................................................... ............................... I 1
Standard Form of Agreement
Between Owner and Consultant for Professional Services
Page 2 of 12
ARTICLE 1 - SERVICES OF CONSULTANT
1.01 Scope
A. CONSULTANT shall provide the Basic and
Additional Services set forth herein and in Exhibit A.
B. Upon issuance of a notice to proceed by the
OWNER, CONSULTANT is authorized to begin Basic
Services as set forth in Exhibit A.
C. (Not Used).
ARTICLE 2 - OWNER'S RESPONSIBILITIES
2.01 General
A. OWNER shall have the responsibilities set forth
herein and in Exhibit B.
ARTICLE 3 - TINIES FOR RENDERING SERVICES
3.01 General
A. (Modified) CONSULTANT's services and
compensation under this Agreement have been agreed to for
the design of the Project. CONSULTANT's obligation to
render services hereunder will be for whatever period
necessary for the final completion of said services.
B. (Not Used).
C. (Modified) For purposes of this Agreement the term
"day" means a calendar day of 24 hours.
3.02 Suspension
A. (Not used).
B. (Modified) If CONSULTANT's services are
delayed or suspended in whole 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 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 Additional Services. OWNER shall pay
CONSULTANT for Additional Services performed or
furnished under Exhibit A, Part 2, as set forth in Exhibit C.
C. (Modified) For Reimbursable Expenses. In
addition to payments provided for in paragraphs 4.01.A and
4.01.13, OWNER shall pay CONSULTANT for Reimbursable
Expenses incurred by CONSULTANT and its Consultants as
set forth in Exhibit C. Ilowever, 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 cacti 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 2251.025 of the Texas Government Code 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.
However, it is expressly understood and agreed that
CONSULTANT will not charge any interest or penalty as set
forth herein on any portion of an invoice that is disputed
and/or withheld in accordance with paragraph 4.02 and that
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 3 of 12
CONSULTANT will not suspend services under the
agreement on account of a disputed invoice or on account of
monies withheld. All payments will be credited first to
principal and then to interest.
C. Disputed Invoices. In the event of a disputed or
contested invoice, only that portion so contested may be
withheld from payment, and the undisputed portion will be
paid.
D. Payments Upon Termination.
In the event of any termination under section 6.06,
CONSULTANT will be entitled to invoice OWNER and
will be paid in accordance with Exhibit C for all services
performed or furnished and all Reimbursable Expenses
incurred through the effective date of termination provided
all instruments of service have been tendered to the OWNER.
2. (Not Used)
E. (Modified) Records of CONSULTANT's Costs.
Records of CONSULTANT's costs pertinent to
CONSULTANT's compensation under this Agreement shall
be kept in accordance with generally accepted accounting
practices. Copies of such records will be made available to
OWNER upon request at no cost to OWNER.
F. Legislative Actions. In the event of legislative
actions after the Effective Date of the Agreement by any level
of government that impose taxes, fees, or costs on
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 taxes, fees, or costs be imposed, they
shall be in addition to CONSULTANT's estimated total
compensation.
G. (Added) Indebtedness. If CONSULTANT, at any
time during the term of this agreement, incurs a debt, as the
word is defined in section 2 -662 of the Code of Ordinances
of the City of Baytown, it shall immediately notify the
OWNER's Director of Finance in writing. If the OWNER's
Director of Finance becomes aware that the
CONSULTANT has incurred a debt, the OWNER's
Director of Finance shall immediately notify the
CONSULTANT in writing. If the CONSULTANT does
not pay the debt within 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 tinder this Agreement, and the
CONSULTANT waives any recourse therefor.
ARTICLE 5 - OPINIONS OF COST
5.01 Opinions of Probable Construction Cost
A. CONSULTANT's opinions of probable
Construction Cost provided for herein are to be made on the
basis of CONSULTANT's experience and qualifications and
represent CONSULTANT's best judgment as an experienced
and qualified professional generally familiar with the
industry. however, since CONSULTANT has no control
over the cost of labor, materials, equipment, or services
furnished by others, or over the Contractor's methods of
determining prices, or over competitive bidding or market
conditions, CONSULTANT cannot and does not guarantee
that proposals, bids, or actual Construction Cost will not vary
from opinions of probable Construction Cost prepared by
CONSULTANT. If OWNER wishes greater assurance as to
probable Construction Cost, OWNER shall employ an
independent cost estimator as provided in Exhibit B.
5.02 (Not Used)
5.03 Opinions of Total Project Costs
A. (Not used).
ARTICLE 6 - GENERAL CONSIDERATIONS
6.01 Standards of Performance
A. (Modified) The standard of care for all services to be
performed or furnished under this Agreement will be the care
and skill ordinarily used by members of the applicable
disciplines, including, but not limited to, architects and
professional engineers, practicing under similar circumstances
at the same time and in the same locality.
B. (Modified) All professionals performing services
under' this Agreement shall be responsible for the technical
accuracy of their services and documents resulting therefrom,
and OWNER shall not be responsible for discovering
deficiencies therein. CONSULTANT shall correct such
deficiencies without additional compensation except to the
extent such action is directly attributable to deficiencies in
OWNER - furnished information upon which CONSULTANT
is authorized to rely as provided in Section 6.01.E.
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
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Between Owner and Architect for Professional Services
Page 4 of 12
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 be responsible for, and
CONSULTANT may rely upon, the accuracy and
completeness of all requirements, programs, instructions,
reports, data, and other information furnished by OWNER to
CONSULTANT pursuant to this Agreement, unless expressly
stated or communicated otherwise by OWNER-
CONSULTANT may use such requirements, reports, data,
and information in performing or furnishing services under
this Agreement.
F. OWNER shall make decisions and carry out its other
responsibilities in a timely manner and shall bear all costs
incident thereto so as not to delay the services of
CONSULTANT.
G. Prior to the commencement of the Construction
Phase, OWNER shall notify CONSULTANT of any
variations from the language indicated in Exhibit E, "Notice
of Acceptability of Work," or of any other notice or
certification that CONSULTANT will be requested to provide
to OWNER or third parties in connection with the Project.
OWNER and CONSULTANT shall reach agreement on the
terms of any such requested notice or certification, and
OWNER shall authorize such Additional Services as are
necessary to enable CONSULTANT to provide the notices or
certifications requested.
H. (Modified) CONSULTANT shall not be required to
sign any documents, no matter by whom requested, that
would result in CONSULTANT's having to certify, guarantee
or warrant the existence of conditions whose existence
CONSULTANT cannot ascertain; provided, that
CONSULTANT has exercised due diligence and was not
otherwise required to certify, guarantee or warrant the
existence of such conditions.
1. During the Construction Phase, CONSULTANT
shall not supervise, direct, or have control over Contractor's
work, nor shall CONSULTANT have authority over or
responsibility for the means, methods, techniques, sequences,
or procedures of construction selected by Contractor, for
safety precautions and programs incident to the Contractor's
work in progress, nor for any failure of Contractor to comply
with Laws and Regulations applicable to Contractor's
furnishing and performing the Work.
J. (Modified) CONSULTANT neither guarantees the
performance of any Contractor nor assumes responsibility for
any Contractor's failure to famish and perform the Work in
accordance with the Contract Documents. However, nothing
contained in this paragraph shall be construed so as to absolve
CONSULTANT from liability for any such failure about
which CONSULTANT knew or should have known existed
in the exercise of CONSULTANT's services under this
Agreement.
K. (Modified) CONSULTANT shall not be responsible
for the acts or omissions of any Contractor(s), subcontractor
or supplier, or of any of the Contractor's agents or employees
or any other persons (except CONSULTANT's own
employees and its consultants for which it is legally liable) at
the Site or otherwise furnishing or performing any of the
Contractor's work; or for any decision made on
interpretations or clarifications of the Contract Documents
given by OWNER without consultation and advice of
CONSULTANT.
L. (Modified) The General Conditions for any
construction contract documents prepared hereunder are to be
the Standard Form of Agreement between Owner and
Contractor and as approved by OWNER in writing.
6.02 Authorized Project Representatives
A. Contemporaneous with the execution of this
Agreement, CONSULTANT and OWNER shall designate
specific individuals to act as CONSULTANT's and
OWNER's representatives with respect to the services to be
performed or furnished by CONSULTANT and
responsibilities of OWNER under this Agreement. Such
individuals shall have authority to transmit instructions,
receive information, and render decisions relative to the
Project on behalf of each respective party.
6.03(Not Used)
6.04 Use of Documents
A. (Modified) Upon execution of this Agreement, the
CONSULTANT grants to the OWNER an ownership interest
in the Instruments of Service. The CONSULTANT shall
obtain similar interests from its consultants consistent with
this Agreement. Within seven days of any termination or
expiration of this Agreement, the CONSULTANT shall be
required to tender to OWNER all Instruments of Service;
Standard Form of Agreement
Between Owner and .Architect for Professional Services
Page 5 of 12
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 OWNEWs
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 - fumished data that
may be relied upon by CONSULTANT are limited to the
printed copies that are delivered to CONSULTANT pursuant
to Exhibit B unless otherwise expressly stated or
communicated by OWNER. Files in electronic media format
of text, data, graphics, or of other types that are furnished by
OWNER to CONSULTANT are only for convenience of
CONSULTANT. Any conclusion or information obtained or
derived from such electronic files will be at the user's sole
risk.
C. Copies of Documents that may be relied upon by
OWNER are limited to the printed copies (also known as hard
copies) that are signed or sealed by the appropriate
professional. Files in electronic media format of text, data,
graphics, or of other types that are furnished by
CONSULTANT to OWNER are only for convenience of
OWNER. Any conclusion or information obtained or derived
from such electronic files will be at the user's sole risk.
D. Because data stored in electronic media format can
deteriorate or be modified inadvertently or otherwise without
authorization of the data's creator, the party receiving
electronic files agrees that it will perform acceptance tests or
procedures within 60 days, after which the receiving parry
shall be deemed to have accepted the data thus transferred.
The party delivering the electronic files will correct any errors
detected within the 60-day acceptance period.
CONSULTANT shall not be responsible to maintain
documents stored in electronic media format after acceptance
by OWNER.
E. When transferring documents in electronic media
format, CONSULTANT makes no representations as to long-
term compatibility, usability, or readability of documents
resulting from the use of software application packages,
operating systems, or computer hardware differing from those
used by CONSULTANT at the beginning of this Project.
F. (Modified) Any use of the Documents on any
extension of the Project or on any other project shall be at
OWNER's sole risk and OWNER hereby releases
CONSULTANT from any liability associated solely with the
reuse of the Documents.
G. If there is a discrepancy between the electronic files
and the hard copies, the hard copies govern.
H. Any verification or adaptation of the Documents for
extensions of the Project or for any other project will entitle
CONSULTANT to further compensation at rates to be agreed
upon by OWNER and CONSULTANT.
6.05 Insurance
A. CONSULTANT shall procure and maintain
insurance as set forth in Exhibit G, "Insurance."
B. Not used.
C. Not used.
D. Not used.
E. Not used.
F. At any time, OWNER may request that
CONSULTANT, at OWNER's sole expense, provide
additional insurance coverage, increased limits, or revised
deductibles that are more protective than those specified in
Exhibit G. If so requested by OWNER, with the concurrence
of CONSULTANT, and if commercially available,
CONSULTANT shall obtain and shall require its Consultants
to obtain such additional insurance coverage, different limits,
or revised deductibles for such periods of time as requested
by OWNER, and Exhibit G will be supplemented to
incorporate these requirements.
6.06 Termination
A. (Modified) The obligations hereunder may be
terminated:
1. For cause,
a. (Modified) By either party upon 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
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 6 of 12
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.
2. For convenience by OWNER effective upon the
receipt of notice by CONSULTANT.
B. Not used.
6.07 Controlling Law
A. This Agreement is to be governed by the law of the
state in which the Project is located.
6.08 Successors, Assigns, and Beneficiaries
A. OWNER and CONSULTANT each is hereby bound
and the partners, successors, executors, administrators and
legal representatives of OWNER and CONSULTANT (and
to the extent permitted by paragraph 6.08.13 the assigns of
OWNER and CONSULTANT) are hereby bound to the other
party to this Agreement and to the partners, successors,
executors, administrators and legal representatives (and said
assigns) of such other 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
best of its knowledge a Hazardous Environmental Condition
does not exist:
B. (Modified) OWNER has disclosed to the best of
its knowledge and belief to CONSULTANT the existence of
all Asbestos, PCB's, Petroleum, Hazardous Waste, or
Radioactive Material located at or near the Site, including
type, quantity and location.
C. (Modified) If a Hazardous Environmental
Condition is encountered or alleged, CONSULTANT shall
have the obligation to notify OWNER on or before the next
business day of the same.
D. It is acknowledged by both parties that
CONSULTANT's scope of services does not include any
services related to a Hazardous Environmental Condition. In
the event CONSULTANT or any other party encounters a
Hazardous Environmental Condition, CONSULTANT may,
at its option and without liability for consequential or any
other damages, suspend performance of services on the
portion of the Project affected thereby until OWNER (i)
retains appropriate specialist consultant(s) or contractor(s) to
identify and, as appropriate, abate, remediate, or remove the
Hazardous Environmental Condition; and (ii) warrants that
the Site is in full compliance with applicable Laws and
Regulations.
E. OWNER acknowledges that CONSULTANT is
performing professional services for OWNER and drat
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
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Between Owner and Architect for Professional Services
Page 7 of 12
the Site in connection with CONSULTANT's activities under
this Agreement.
F. If CONSULTANT's services under this Agreement
cannot be performed because of a Hazardous Environmental
Condition, the existence of the condition shall justify
CONSULTANT's terminating this Agreement for cause on 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 part thereof with a valid and
enforceable provision that comes as close as possible to
expressing the intention of the stricken provision.
6.15 Waiver
A. Non- enforcement of any provision by either party
shall not constitute a waiver of that provision, nor shall it
affect the enforceability of that provision or of the remainder
of this Agreement.
6.16 Headings
A. The headings used in this Agreement are for general
reference only and do not have special significance.
ARTICLE 7 - DEFINITIONS
7.01 Defined Terms
A. Wherever used in this Agreement (including the
Exhibits hereto) and printed with initial or all capital letters,
the terms listed below have the meanings indicated, which
are applicable to both the singular and plural thereof:
1. Addenda —Written or graphic instruments issued
prior to the opening of Bids which clarify, correct, or
change the Bidding Documents.
2. Additional Services- -The services to be
performed for or furnished to OWNER by
CONSULTANT in accordance with Exhibit A, Part 2 of
this Agreement.
3. Agreement --This "Standard Form of Agreement
between OWNER and CONSULTANT for Professional
Services," including those Exhibits listed in Article 8
hereof.
4. Application for Payment - -The form acceptable
to CONSULTANT which is to be used by Contractor in
requesting progress or final payments for the completion
of its Work and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents.
5. Asbestos —Any material that contains more than
one percent asbestos and is friable or is releasing asbestos
fibers into the air above current action levels established
by the United States Occupational Safety and Health
Administration.
6. Basic Services —The services to be performed
for or furnished to OWNER by CONSULTANT in
accordance with Exhibit A, Part 1, of this Agreement.
7. Bid —The offer or proposal of the bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.
8. Bidding Documents- -The advertisement or
invitation to Bid, instructions to bidders, the Bid form
and attachments, the Bid bond, if any, the proposed
Contract Documents, and all Addenda, if any.
9. Change Order - -A document recommended by
CONSULTANT, which is signed by Contractor and
OWNER to authorize an addition, deletion or revision in
the Work, or an adjustment in the Contract Price or the
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 8 of 12
Contract Times, issued on or after the Effective Date of
the Construction Agreement
10. Construction Agreement- -The written
instrument which is evidence of the agreement, contained
in the Contract Documents, between OWNER and
Contractor covering the Work.
11. Construction Contract - -The entire and
integrated written agreement between the OWNER and
Contractor concerning the Work.
12. Construction Cost —The cost to OWNER of
those portions of the entire Project designed or specified
by CONSULTANT. Construction Cost does not include
costs of services of CONSULTANT or other design
professionals and consultants, cost of land, rights -of -way,
or compensation for damages to properties, or OWNER's
costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges
incurred in connection with the Project, or the cost of
other services to be provided by others to OWNER
pursuant to Exhibit B of this Agreement. Construction
Cost is one of the items comprising Total Project Costs.
13. (Modified) Contract Documents -- Documents
that establish the rights and obligations of the parties
engaged in construction and include the Construction
Agreement between OWNER and Contractor and all
documents referenced therein, Addenda (which pertain to
the Contract Documents), Contractor's Bid (including
documentation accompanying the Bid and any post -Bid
documentation submitted prior to the notice of award)
when attached as an exhibit to the Construction
Agreement, the notice to proceed, the bonds, appropriate
certifications, insurance documents the General
Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more
specifically identified in the Construction Agreement,
together with all Written Amendments, Change Orders,
Work Change Directives, Field Orders, and
professional's written interpretations and clarifications
issued on or after the Effective Date of the Construction
Agreement. Approved Shop Drawings and the reports
and drawings of subsurface and physical conditions are
not Contract Documents.
14. Contract Price - -The moneys payable by
OWNER to Contractor for completion of the Work in
accordance with the Contract Documents and as stated in
the Construction Agreement
15. Contract Times --The numbers of days or the
dates stated in the Construction Agreement to:
(i) achieve Final Completion, and (ii) complete the Work
so that it is ready for final payment as evidenced by
CONSULTANT's written recommendation of final
payment.
16. Contractor - -An individual or entity with whom
OWNER enters into a Construction Agreement.
17. Correction Period —The time after Final
Completion during which Contractor must correct, at no
cost to OWNER, any Defective Work, normally one year
after the date of Final Completion or such longer period
of time as may be prescribed by Laws or Regulations or
by the terms of any applicable special guarantee or
specific provision of the Contract Documents.
18. Defective —An adjective which, when modifying
the word Work, refers to Work that is unsatisfactory,
faulty, or deficient, in that it does not conform to the
Contract Documents. or does not meet the requirements
of any inspection, reference standard, test, or approval
referred to in the Contract Documents, or has been
damaged prior to CONSULTANT's recommendation of
final payment.
19. Documents —Data, reports, Drawings,
Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided
or famished in appropriate phases by CONSULTANT to
OWNER pursuant to this Agreement.
20. Dimvings --That part of the Contract Documents
prepared or approved by CONSULTANT which
graphically shows the scope, extent, and character of the
Work to be performed by Contractor. Shop Drawings
are not Drawings as so defined.
21. Effective Date of the Construction Agreement —
The date indicated in the Construction Agreement on
which it becomes effective, but if no such date is
indicated, it means the date on which the Construction
Agreement is signed and delivered by the last of the two
parties to sign and deliver.
22. Effective Date of the Agreement- -The date
indicated in this Agreement on which it becomes
effective, but if no such date is indicated, it means the
date on which the Agreement is signed and delivered by
the last of the two parties to sign and deliver.
23. Consultants -- Individuals or entities having a
contract with CONSULTANT to fiunish services with
respect to this Project as CONSULTANT's independent
professional associates, consultants, subcontractors, or
vendors. The term CONSULTANT includes its
Consultants.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 9 of 12
24. Field Order - -A written order issued by
CONSULTANT which directs minor changes in the
Work but which does not involve a change in the
Contract Price or the Contract Times.
25. Final Completion shall mean that all work has
been completed, all final punch list items have been
inspected and satisfactorily completed, all payments to
subcontractors have been made, all documentation and
warranties have been submitted, all closeout documents
have been executed and approved by the OWNER, and
the Project has been finally accepted by the OWNER.
26. General Conditions -That part of the Contract
Documents which sets forth terms, conditions, and
procedures that govern the Work to be performed or
furnished by Contractor with respect to the Project.
27. Hazardous Environmental Condition —The
presence at the Site of Asbestos, PCB's, Petroleum,
Hazardous Waste, or Radioactive Materials in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
28. Hazardous Waste- -The term Hazardous Waste
shall have the meaning provided in Section 1004 of the
Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.
29. Laws and Regulations, Laws or Regulations —
Any and all applicable laws, rules, regulations,
ordinances, codes, standards, and orders of any and all
governmental bodies, agencies, authorities, and courts
having jurisdiction.
30. PCB's -- Polychlorinated biphenyls.
31. Petroleum -- Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline,
kerosene, and oil mixed with other non- l-iazardous Waste
and crude oils.
32. Radioactive Materials -- Source, special nuclear,
or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.
33. Record Drawings- -The Drawings as issued for
construction on which the CONSULTANT, upon
completion of the Work, has shown changes due to
Addenda or Change Orders and other information which
CONSULTANT considers significant based on record
documents furnished by Contractor to CONSULTANT
and which were annotated by Contractor to show
changes made during construction.
34. Reimbursable Expenses- -The expenses incurred
directly by CONSULTANT in connection with the
performing or furnishing of Basic and Additional
Services for the Project for which OWNER shall pay
CONSULTANT as indicated in Exhibit C.
35. Resident Project Representative —The
authorized representative of CONSULTANT, if any,
assigned to assist CONSULTANT at the Site during the
Construction Phase. The Resident Project Representative
will be CONSULTANT's agent or employee and under
CONSULTANT's supervision. As used herein, the tern
Resident Project Representative includes any assistants
of Resident Project Representative agreed to by
OWNER. The duties and responsibilities of the Resident
Project Representative are as set forth in Exhibit D.
36. Samples — Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.
37. Shop Drawings - -All drawings, diagrams,
illustrations, schedules, and other data or information
which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to
CONSULTANT to illustrate some portion of the Work.
38. Site- -Lands or areas indicated in the Contract
Documents as being furnished by OWNER upon which
the Work is to be performed, rights -of -way and
easements for access thereto, and such other lands
furnished by OWNER which are designated for use of
Contractor.
39. Specifications—That part of the Contract
Documents consisting of written technical descriptions of
materials, equipment, systems, standards, and
workmanship as applied to the Work and certain
administrative details applicable thereto.
40. Substantial Completion —The time at which the
Work (or a specified part thereof) has progressed to the
point where, in the opinion of CONSULTANT, the
Work (or a specified part thereof) is sufficiently
complete, in accordance with the Contract Documents, so
that the Work (or a specified part thereof) can be utilized
for the purposes for which it is intended. The terms
"substantially complete" and "substantially completed"
as applied to all or part of the Work refer to Substantial
Completion thereof.
Standard Form of Agreement
Between Owner and Architect for Professional Services
Page 10 of 12
5.01 Exhibits Included
41. Supplementary Conditions- -That part of the
Contract Documents which amends or supplements the A. Exhibit A, "CONSULTANT's Services," consisting
General Conditions. of seven (7) pages.
42. (Modified) Total Project Costs - -The sum of the
Construction Cost, allowances for contingencies, the total
costs of services of CONSULTANT or other design
professionals and consultants, cost of land, rights -of -way,
compensation for damages to properties, OWNER's
costs for legal, accounting, insurance counseling or
auditing services, interest and financing charges incurred
in connection with the Project, and the cost of other
services to be provided by others to OWNER pursuant to
Exhibit B of this Agreement.
43. Work —The entire completed construction or the
various separately identifiable parts thereof required to be
provided under the Contract Documents with respect to
this Project. Work includes and is the result of
performing or furnishing labor, services, and
documentation necessary to produce such construction
and furnishing, installing, and incorporating all materials
and all equipment into such construction, all as required
by the Contract Documents.
44. Work Change Directive —A written directive to
Contractor issued on or after the Effective Date of the
Construction Agreement and signed by OWNER upon
recommendation of the CONSULTANT, ordering an
addition, deletion, or revision in the Work, or responding
to differing or unforeseen subsurface or physical
conditions under which the Work is to be performed or to
emergencies. A Work Change Directive will not change
the Contract Price or the Contract Times but is evidence
that the parties expect that the change directed or
documented by a Work Change Directive will be
incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if
any, on the Contract Price or Contract Times.
45. Written Amendment —A written amendment of
the Contract Documents signed by OWNER and
Contractor on or after the Effective Date of the
Construction Agreement and normally dealing with the
non - architectural or non - technical rather than strictly
construction - related aspects of the Contract Documents.
ARTICLE 8 - EXHIBITS AND SPECIAL
PROVISIONS
B. Exhibit B, "OWNER's Responsibilities," consisting
of two (2) pages.
C. Exhibit C, "Payments to CONSULTANT for
Services and Reimbursable Expenses," consisting of two (2)
pages.
D. Exhibit D, "Duties, Responsibilities and Limitations
of Authority of Resident Project Representative," is not used.
E. Exhibit E, "Notice of Acceptability of Work," is not
used.
F. Exhibit F, "Construction Cost Limit," is not used.
G. Exhibit G, "Insurance," consisting of two (2) pages.
H. Exhibit H, "Dispute Resolution," is not used.
Exhibit 1, "Allocation of Risks," is not used.
J. Exhibit J, "Special Provisions" is not used.
K. (Added) Exhibit K, "Indemnification" consisting of
two (2) pages.
8.02 Total Agreement
A. This Agreement (consisting of pages 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 Architect for Professional Services
Page I 1 of 12
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement, the Effective Date of which is
indicated on page 1.
OWNER: CITY OF BAYT
GARRISON C. BRU
Title: City Manager
Date Signed:
Address for giving notices:
P.O. BOX 424
BAYTOWN, TEXAS 77422-0424
Designated Representative (paragraph 6.02.A):
JOSE A. PASTRANA, P.E.
Title: Director of Engineering
Phone Number: (281) 420-7154
Facsimile Number: (281) 420-6586
E-Mail Address: jose.pastrana@baytown.org
ULTANT: PIERCE GOODWIN
ALEXANDER & LINVILLE, INC.
Printed N
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Date Signed: $/Ai110
Address for giving notices:
3131 BRIAR PARK, STE. 200
HOUSTON, TEXAS 77042
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Phone Number: A\ a``r-� 1143�
Facsimile Number: A \ '' ` A D -I \ J C4
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Standard Form of Agreement
Between Owner and Architect 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 aO/v
Initial:
OWN R
CONSULTANT
CONSULTANT's Services
Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties.
CONSULTANT shall provide Basic and Additional Services as set forth below.
PART 1 — BASIC SERVICES (Modified)
A 1.01 Schematic Design/Programming 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 are not part of CONSULTANT's Basic Services, and assist OWNER in obtaining
such data and services.
3. Consult with OWNER's consultants to coordinate the scope of the Project.
4. (Modified) Identify, consult with, analyze requirements of, and obtain the approval of governmental
authorities having jurisdiction to approve the portions of the Project designed or specified by
CONSULTANT, including but not limited to, requirement of the Texas Accessibility Standards of the
Architectural Barriers Act.
5. Identify and evaluate potential solutions available to OWNER; and, after consultations with OWNER,
recommend to OWNER those solutions which in CONSULTANT's judgment meet OWNER's
requirements for the Project.
6. (Modified) Attend meetings with OWNER and OWNER'S consultants, designated boards,
commissions, and/or city council to receive input into OWNER'S requirements for the Project and
evaluate potential solutions available to OWNER.
7. (Modified) Prepare a preliminary report (the "Report") which will, as appropriate, contain schematic
layouts illustrating the scale and relationship of the components, sketches, schedule of events,
preliminary site plans, building plans, sections and elevations, and conceptual design criteria with
appropriate exhibits to indicate the agreed -to requirements, considerations involved, and those
altemate solutions available to OWNER which CONSULTANT recommends. Preliminary selections
of major building systems and construction materials shall be noted on the drawings or otherwise
described in writing in the Report. This Report will be accompanied by CONSULTANT's opinion of
Total Project Costs for each solution which is so recommended for the Project with each component
separately itemized, including the following, which will be separately itemized: opinion of probable
Construction Cost, allowances for contingencies and for the estimated total costs of design,
professional, and related services provided by CONSULTANT and, on the basis of information
furnished by OWNER, allowances for other items and services included within the definition of Total
Project Costs.
Page 1 of 7 pages
(Exhibit A — Architect's Services)
8. Furnish three (3) review copies of the Report to OWNER within twenty-one (2l) 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
five (5) final copies of the revised Report and one copy in pdf format on compact disk to the OWNER
within ten (10) days after completion of reviewing it with OWNER.
B. (Modified) CONSULTANT's services under the Schematic Design/Programming Phase will be considered
complete on the date when the final copies of the revised Report have been delivered to and accepted by
OWNER.
A1.02 Design Development Phase
A. Upon written authorization from OWNER, CONSULTANT shall:
1. (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
A 1.01.A.7.
4. Perform or provide the following additional final Design Phase tasks or deliverables:
a. CONSULTANT will bring on design consultants such as mechanical, electrical and plumbing,
and other required consultants to complete the balance of the work.
b. CONSULTANT will prepare construction documents required for permitting and construction.
The completed construction documents will be submitted to governmental agencies for purposes
of obtaining all appropriate permits.
c. CONSULTANT'S services shall include all architectural and MEP design services necessary for
the Project.
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 and a copy of the same in pdf format on compact
disks to the OWNER within ten (10) days after completion of reviewing it with OWNER
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.
A1.025 Contraction Document Phase
Page 2 of 7 pages
(Exhibit A — Architect's Services)
A. After 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:
1. 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 in pdf format on compact disks, for review and approval by OWNER, its legal counsel, and
other advisors, as appropriate, and assist OWNER in the preparation of other related documents. Bidding
Documents shall reflect multiple phases of the construction, but CONSULTANT will design the entire
project at the same time.
2. Update the opinion of probable Construction Cost and project schedule at 50% completion and 95%
completion of Construction Documents
3. Submit 2 final copies of the Bidding Documents and a revised opinion of probable Construction Cost to
OWNER within forty -two (42) days after authorization to proceed with this phase.
4. (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.
B. (Modified) CONSULTANT's services under the Construction Document Phase will be considered complete
on the date when the submittals required by paragraph A1.03.A.6 have been delivered to and accepted by
OWNIER.
A 1.03 Bidding or Negotiating Phase
A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable
Construction Cost as determined in the Design Development Phase, and upon written authorization by
OWNER to proceed, CONSULTANT shall:
1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where
applicable, provide 15 sets of plans and specifications and an electronic copy in pdf format on compact
disk.
2. Answer questions and issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.
3. Perform or provide the following additional Bidding or Negotiating Phase tasks or deliverables:
a. Develop a list of potential contractors, and
b. Provide reference letter for bid award.
4. 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.
5. (Modified) Attend the Mandatory Pre -Bid Conference and the Bid opening, prepare Bid tabulation sheets,
assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding
contracts for the Work.
5. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction,
materials, equipment, or services.
Page 3 of 7 pages
(Exhibit A — Architect's Services)
B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the
Construction Phase.
A 1.04 Construction Phase
A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from
OWNER, CONSULTANT shall:
1. General Administration of Construction Contract. Consult with OWNER and act as OWNER's
representative as provided in the General Conditions. The extent and limitations of the duties,
responsibilities and authority of CONSULTANT as assigned in said General Conditions shall not be
modified, except as CONSULTANT may otherwise agree in writing. All of OWNER's instructions
to Contractor will be issued through CONSULTANT, who shall have authority to act on behalf of
OWNER in dealings with Contractor to the extent provided in this Agreement and said General
Conditions except as otherwise provided in writing. CONSULTANT shall attend on -site progress
meetings as requested by OWNER and maintain meeting minutes, on -site progress photos and site
conditions, as appropriate. CONSULTANT shall make required submittals or assist the OWNER in
making required submittals as requested by the OWNER to governmental agencies having
jurisdiction over the Project, including, but not limited to, the preparation of a TDLR application and
response.
2. (Modified) Construction and Materials Testing. Assist the OWNER in obtaining construction
material testing, including concrete inspections, concrete test cylinders, reinforcing steel inspection,
as appropriate, and perform an engineering report review as necessary for the Project,
3. Pre - Construction Conference. Participate in a Pre- Construction Conference prior to commencement
of Work at the Site.
4. Baselines and Benchmarks. As appropriate, establish baselines controls and temporary benchmarks
for locating the Work which in CONSULTANT's judgment are necessary to enable Contractor to
proceed.
S. Visits to Site and Observation of Construction. In connection with observations of Contractor's work
in progress while it is in progress:
a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction,
appropriate to verify Contractor's payment requests, and as CONSULTANT and/or OWNER
deems necessary, in order to observe as an experienced and qualified design professional the
progress and quality of the Work Such visits and observations by CONSULTANT, and the
Resident Project Representative, if any, are not intended to be exhaustive or to extend to every
aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work
in progress beyond the responsibilities specifically assigned to CONSULTANT in this
Agreement and the Contract Documents, but rather are to be limited to spot checking, selective
sampling, and similar methods of general observation of the Work based on CONSULTANT's
exercise of professional judgment as assisted by the Resident Project Representative, if any.
Based on information obtained during such visits and such observations, CONSULTANT will
determine if Contractor's work is proceeding in accordance with the Contract Documents, and
CONSULTANT shall keep OWNER informed of the progress of the Work.
(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
Page 4 of 7 pages
(Exhibit A — Architect's Services)
indicated in the Contract Documents has been implemented and preserved by Contractor.
CONSULTANT shall not, during such visits or as a result of such observations of Contractor's
work in progress, supervise, direct, or have control over Contractor's work, nor shall
CONSULTANT have authority over or responsibility for the means, methods, techniques,
sequences, or procedures of construcdon selected by Contractor, for safety precautions and
programs incident to Contractor's work, or for any failure of Contractor to comply with Laws
and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly,
CONSULTANT neither guarantees the performance of any Contractor nor assumes
responsibility for any Contractor's failure to furnish and perform its work in accordance with the
Contract Documents.
6. (Modified) Defective (Fork. Recommend to OWNER that Contractor's work be disapproved and
rejected while it is in progress if, on the basis of such observations, CONSULTANT believes that
such work will not produce a completed Project that substantially conforms to the Contract
Documents or that it will prejudice the integrity of the design concept of the completed Project as a
functioning whole as indicated in the Contract Documents.
7. Clarifications and Interpretations, Field Orders. Issue necessary clarifications and interpretations of
the Contract Documents as appropriate to the orderly completion of Contractor's work. Such
clarifications and interpretations will be consistent with the intent of and reasonably inferable from
the Contract Documents. CONSULTANT may issue Field Orders authorizing minor variations from
the requirements of the Contract Documents.
8. Change Orders and Work Change Directives. Recommend Change Orders and Work Change
Directives to OWNER, as appropriate, and prepare Change Orders and Work Change Directives as
required.
9. Shop Drawings and Samples. Review and approve or take other appropriate action in respect to
Shop Drawings and Samples and other data which Contractor is required to submit, but only for
conformance with the information given in the Contract Documents and compatibility with the
design concept of the completed Project as a functioning whole as indicated in the Contract
Documents. CONSULTANT shall log and track all of contractor's submittals and expedite reviews
as may be required by OWNER. 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. Substiniter 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.
H. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed
reasonably necessary, and receive and review all certificates of inspections, tests, and approvals
required by Laws and Regulations or the Contract Documents. CONSULTANT's review of such
certificates will be for the purpose of determining that the results certified indicate compliance with
the Contract Documents and will not constitute an independent evaluation that the content or
procedures of such inspections, tests, or approvals comply with the requirements of the Contract
Documents. CONSULTANT shall be entitled to rely on the results of such tests.
12. (Modified) Disagreements between OIFNER and Contractor. Render formal written decisions on all
claims of OWNER and Contractor relating to the acceptability of Contractor's work or the
interpretation of the requirements of the Contract Documents pertaining to the execution and
progress of Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not
show partiality to OWNER or Contractor.
Page 5 of 7 pages
(Exhibit A — Architect's Services)
13. Applications for Payment. Based on CONSULTANT's observations as an experienced and qualified
design professional and on review of Applications for Payment and accompanying supporting
documentation:
a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute CONSULTANT's
representation to OWNER, based on such observations and review, that, to the best of
CONSULTANT's knowledge, information and belief, Contractor's work has progressed to the
point indicated, the quality of such work is substantially in accordance with the Contract
Documents (subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, to the results of any subsequent tests called for in the Contract
Documents and to any other qualifications stated in the recommendation), and the conditions
precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far
as it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price
work, CONSULTANT's recommendations of payment will include final determinations of
quantities and classifications of Contractor's work (subject to any subsequent adjustments
allowed by the Contract Documents). The responsibilities of CONSULTANT contained in
paragraph A1.04.A.5.a are expressly subject to the limitations set forth in paragraph A] .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. Other Services.
a. Provide assistance in connection with the testing and adjusting of Project equipment or systems.
b. Assist OWNER in training OWNER's staff to operate and maintain Project, equipment, and
systems.
c. Assist OWNER in developing procedures for control of the operation and maintenance of, and
record keeping for Project equipment and systems.
d. Together with OWNER, visit the Project to observe any apparent defects in the Work, assist
OWNER in consultations and discussions with Contractor concerning correction of any such
defects, and make recommendations as to replacement or correction of Defective Work, if
present.
15. Contractor's Completion Documents.
Page 6 of 7 pages
(Exhibit A — Architect's Services)
a. (Modified) Receive and review maintenance and operating instructions, schedules, and
guarantees as prepared by the Contractor in accordance with the Contract Documents.
Consultant will compile this information as provided by Contractor, and deliver three (3) copies
of the same to OWNER.
b. (Modified) Receive bonds, certificates, or other evidence of insurance not previously submitted
and required by the Contract Documents, certificates of inspection, tests and approvals, Shop
Drawings, Samples and other data approved as provided under paragraph A1.04.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 A1.04.A.9.
c. Transmit these documents to OWNER within thirty days of receipt of documents from
Contractor.
d. (Added) Prepare and furnish 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.
16. 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 punch -lists as necessary for the Work to achieve final
completion.
17. (Modified) Final .Nonce of Acceptability of the Work. Conduct a final inspection to determine if the
completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final
payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall
also provide a notice in the form attached hereto as Exhibit E (the "Notice of Acceptability of Work ")
that to the best of CONSULTANT's knowledge, information and belief and upon the exercise of
CONSULTANT'S due diligence, the Work is acceptable and is in compliance with the Contract
Documents.
B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first
Construction Agreement for the Project or any part thereof and will terminate upon final payment to
Contractors.
C. Limitation of Responsibilities. CONSULTANT shall not be responsible for the acts or omissions of any
Contractor, or of any of its subcontractors, suppliers, or of any other individual or entity performing or
furnishing any of the Work. CONSULTANT shall not be responsible for failure of any Contractor to perform
or famish the Work in accordance with the Contract Documents,
PART 2 —ADDITIONAL SERVICES
A2.01 Additional Services Requiring OWNER's Authorization in Advance
A. Not included
Page 7 of 7 pages
(Exhibit A — Architect's Services)
This is EXHIBIT B, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional
OWNER's Responsibilities
Services dated
Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties.
B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:
A. Provide CONSULTANT with all criteria and full information as to OWNER's requirements for the Project,
including design objectives and constraints, space, capacity and performance requirements, flexibility, and
expandability, and any budgetary limitations; and furnish copies of all design and construction standards which
OWNER will require to be included in the Drawings and Specifications; and furnish copies of OWNER's standard
forms, conditions, and related documents for CONSULTANT to include in the Bidding Documents, when applicable.
B. Furnish to CONSULTANT any other available information pertinent to the Project including reports and data
relative to previous designs, or investigation at or adjacent to the Site. Nothing contained in this Exhibit or in this
Agreement shall be construed to require the OWNER to provide such records in any certain format. The format in
which the existing data and documentation will be provided shall be at the sole discretion of the OWNER.
C. (Modified) Following CONSULTANT's assessment of initially available Project information and data and
upon CONSULTANT's written request, furnish or otherwise make available such additional available Project related
information and data as is reasonably required to enable CONSULTANT to complete its Basic and Additional Services.
1. (Not Used).
2. (Not Used).
3. (Not Used).
4. (Not Used).
5. (Not Used).
6. (Not Used).
D. (Not Used).
E. (Modified) Authorize CONSULTANT to provide Additional Services as set forth in Part 2 of Exhibit A of the
Agreement as the OWNER determines is necessary.
F. (Modified) Arrange for access to and make all provisions for CONSULTANT to enter upon public property as
required for CONSULTANT to perform services under the Agreement.
G. Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications, proposals, and other
documents presented by CONSULTANT (including obtaining advice of an attorney, insurance counselor, and other
advisors or consultants as OWNER deems appropriate with respect to such examination) and render in writing timely
decisions pertaining thereto.
Page 1 of 2 pages
(Exhibit B - OWNER's Responsibilities)
li. (Not Used).
I. (Not Used).
J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by
OWNER to perform or fiunish services in regard to the Project, including, but not limited to, cost estimating, project
peer review, value architectural, and constructability review.
K. Furnish to CONSULTANT data as to OWNER's anticipated costs for services to be provided by others for
OWNER so that CONSULTANT may make the necessary calculations to develop and periodically adjust
CONSULTANT's opinion of Total Project Costs.
L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition
to, CONSULTANT to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of
authority of such other party and the relation thereof to the duties, responsibilities, and authority of CONSULTANT.
M. Attend the pre -bid conference, bid opening, pre - construction conferences, construction progress and other job
related meetings, and final payment inspections.
N. Provide copies of daily observation reports prepared by OWNER's on -site representative to
CONSULTANT during construction phase.
Page 2 of 2 pages
(Exhibit B - OWNER's Responsibilities)
This is EXHIBIT C, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
COgISULTANT for Professional Services • . ted
7 12O/ O
Payments to CONSULTANT for Services and Reimbursable Expenses
Article 4 of the Agreement is amended and
supplemented to include the following agreement of
the parties:
ARTICLE 4 -- PAYMENTS TO THE
CONSULTANT
C4.01 For Basic Services Having A Determined
Scope —Cost not to Exceed Method of
Payment
A. OWNER shall pay CONSULTANT for
Basic Services set forth in Exhibit A as follows:
1. (Modified) A cost not to exceed
amount of $96,000.00, based upon the rate
schedule, which is attached as Appendix 1 of
Exhibit C and incorporated herein for all intents
and purposes. This amount does not include
those CONSULTANT'S consultant's charges as
provided below in this article 4, Subparagraph
C4.05, if any, and will be distributed at the
completion of each phase in the following
amount:
1. Schematic Design $ 14,400.00
2. Design Development $ 19,200.00
3. Construction Document $ 38,400.00
4. Bidding/Negotiating $ 4,800.00
5. Construction Phase $ 19,200.00
3.2. (Modified) CONSULTANT may with
the consent of OWNER alter the distribution of
compensation between individual phases noted
herein to be consistent with services actually
rendered, but shall not exceed the total cost not
to exceed amount unless approved in writing by
the OWNER.
3. The cost not to exceed includes
compensation for CONSULTANT's services
and services of its Consultants (with the
exception of those outlined in paragraph C4.05),
Initial:
OWN
CONSULTANT`
if any. Appropriate amounts have been
incorporated in the cost not to exceed to account
for labor, overhead and profit.
4. Not Used.
5. The portion of the amount billed for
CONSULTANT's services will be based upon
total services actually completed during the
billing period, which shall be a calendar month.
Invoices shall be tendered no more often than
once a month for all of the services performed
during the applicable month.
C4.02 For Basic Services Having An Undetermined
Scope -- Direct Labor Costs Times a Factor
Method of Payment
A. (Not Used).
C4.03 For Additional Services
A. OWNER shall pay CONSULTANT for
Additional Services as follows:
1. General. For services of
CONSULTANT's employees engaged directly
on the Project pursuant to paragraph Part 1 of
Exhibit A of the Agreement, except for services
as a consultant, an amount based upon the actual
hours worked and the rate schedule, which is
attached as Appendix 1 of Exhibit C and
incorporated herein for all intents and purposes
plus Reimbursable Expenses. Additional
Services shall not exceed $0.00 without the prior
written consent of the Owner.
2. (Not Used).
Page 1 of 2 pages
(Exhibit C - Basic Services With Determined Scope -- Cost not to exceed Method)
C4.04 For Reimbursable Expenses
A. (Modified) When not included in
compensation for Basic Services under paragraph
C4.01, OWNER shall pay CONSULTANT for
Reimbursable Expenses at the rate set forth in
Appendix 2 of this Exhibit C. Before the OWNER
shall be liable for any reimbursable expenses, the
CONSULTANT must obtain prior written approval
of the OWNER of any expense that exceeds
$1000.00 for which the CONSULTANT seeks
reimbursement. Reimbursable Expenses shall not
exceed a total of S 10,000.00.
B. (Modified) Reimbursable Expenses include
the following categories: mileage, parking tolls, long
distance, reproduction of Drawings, Specifications,
Bidding Documents, and similar Project - related items
in addition to those required under Exhibit A, and, if
authorized in advance by OWNER.
C. The amounts payable to CONSULTANT for
Reimbursable Expenses will be the Project - related
internal expenses actually incurred or allocated by
CONSULTANT, plus all invoiced external
Reimbursable Expenses allocable to the Project, the
latter multiplied by a Factor of 1_.10. Travel, meals,
mileage, rental cars, and like expenses are not subject
to the 1.10 Factor.
D. Not Used.
E. (Added) The OWNER must approve all
travel expenses before the same are incurred. if such
approval is not obtained, the OWNER shall not be
liable for such travel expenses.
C4.05 For CONSULTANT's Consultant's Charges
A. (Modified) Whenever compensation to
CONSULTANT herein is stated to include charges of
CONSULTANT'S Consultants, those charges shall
be the amounts billed by CONSULTANT'S
Consultants to CONSULTANT times a Factor of
1.10. The consultant charges shall not exceed the
amounts specified, which include the factor, for each
of the following services, unless approved in writing
by the OWNER:
MEP
I. Schematic Design .........................$ 1,500.00
2. Design Development .....................$ 2,000.00
3. Construction Document ................$ 4,000.00
4. Bidding/ Negotiating .....................$ 500.00
5. Construction Phase .......................$ 2,000.00
C4.06 Direct Labor- Costs
A. (Not Used).
B. (Not Used).
4.07 Rate Schedule
A. (Not used)
B. (Not used).
C4.08 Other Provisions Concerning Payment
A. Progress Payments. The portion of the
amounts billed for CONSULTANT's services which
are identified in paragraphs C4.01 and C4.03, will be
based on the Rate Schedule for the cumulative hours
charged to the Project during the billing period by all
of CONSULTANT's employees, plus Reimbursable
Expenses and CONSULTANT's Consultant's
charges, if any.
Page 2 of 2 pages
(Exhibit C - All Other Services /Charges -- Cost not to Exceed Method of Payment)
APPENDIX I OF EXHIBIT C
RATESCREDULE
Page I of I pages
(Appendix 1 to Exhibit C Rate Schedule)
Director
$195.00
Principal
5190.00
Project Manager
5185.00
Senior Project Architect, Designer, Engineer
$180.00
Project Architect, Designer, Engineer
$175.00
Architect, Designer, Engineer
5160M
Assistant Architect, Designer, Engineer
$125.00
Intem/Space Planner
5100.00
Junior Designer/Assistant Space Planner
$85.00
Construction Administration
$170.00
Construction Inspector
$150.00
Senior Administration
$100.00
Administration
$80.00
Page I of I pages
(Appendix 1 to Exhibit C Rate Schedule)
APPENDIX 2 OF EXHIBIT C
REIMBURSEMENT OF COSTS
Reproduction and Deliveries: Cost plus 10%
Mileage: IRS Rate
Page 1 of 1 pages
(Appendix 2 to Exhibit C Reimbursement of Costs)
This is EXHIBIT G, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
CONSULTANT for Professional Services dated
(P=.?7- e90/%
Insurance
Initial:
OWN R
Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties.
G6.05 Insurance
Throughout the term of this Agreement, the CONSULTANT at its own expense shall purchase, maintain and keep
in force and effect insurance against claims for injuries to or death of persons or damages to property which may
arise out of or result from the CONSULTANT's operations and/or performance of the work under this Agreement,
whether such operations and/or performance be by the CONSULTANT, its agents, representatives, volunteers,
employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose
acts any of them may be liable.
The CONSULTANT's insurance coverage shall be primary insurance with respect to the OWNER, its officers,
agents and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and
employees shall be considered in excess of the CONSULTANT's insurance and shall not contribute to it. Further,
the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability
policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for
subcontractors shall be subject to all of the requirements stated herein.
The following is a list of standard insurance policies along with their respective minimum coverage amounts
required in this contract:
Commercial General Liability (CGL)
General Aggregate: $1,000,000
Products & Completed Operations: $1,000,000
Personal & Advertising Injury: $1,000,000
Per Occurrence: $500,000
a. Coverage shall be at least as broad as ISO CG 00 01 10 93
b. No coverage shall be excluded from standard policy without notification of individual exclusions being
attached for review and acceptance.
Business Automobile Policy (BAP)
Combined Single Limits: $1,000,000
a. Coverage for "Any Auto."
Workers' Compensation Insurance
Statutory Limits
Employer's Liability $500,000
Waiver of Subrogation required
Errors & Omissions (E&O)
Limit: $1,000,000
Page 1 of 2 Pages
(Exhibit G - Insurance)
a. For all architects, and/or design companies.
b. Claims -made form is acceptable.
c. Coverage will be in force for three (3) years after project is completed.
Upon execution of this contract, CONSULTANT shall file with the OWNER valid Certificates !of Insurance and
endorsements acceptable to the OWNER Such Certificates shall contain a provision that coverage afforded under
the policies will not be canceled, suspended, voided, or reduced until at least thirty (30) days' prior written notice
has been given to the OWNER via certified mail, return receipt requested.
The CONSULTANT shall also file with the OWNER valid Certificates of Insurance covering all subcontractors.
The following are general requirements applicable to all policies:
a. AM Best Rating of B +: V 1I 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.
C. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates
of insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of
insurance coverage shall be provided to OWNER's representative prior to execution of this agreement.
f. Upon request of and without cost to OWNER, loss runs (claims listing) of any and/or all insurance
coverage shall be furnished to OWNER's representative.
Page 2 of 2 pages
(Exhibit G - Insurance)
This is EXHIBIT K, consisting of 2 pages, referred to in and
part of the Agreement between OWNER and
C NSULTANT for Professional Services dated
Initial:
OWNER
CONSULT
CONSULTANT AGREES TO AND SHALL INDEMNIFY AND
HOLD HARMLESS AND DEFEND OWNER, ITS OFFICERS,
AGENTS, AND EMPLOYEES (HEREAFTER REFERRED TO AS
"OWNER") FROM AND AGAINST ANY AND ALL CLAIMS,
LOSSES, DAMAGES, CAUSES OF ACTION, SUITS AND
LIABILITY OF EVERY KIND, INCLUDING ALL EXPENSES OF
LITIGATION, COURT COSTS, AND ATTORNEY'S FEES, FOR
INJURY TO OR DEATH OF ANY PERSON, FOR DAMAGE TO
ANY PROPERTY OR FOR ANY BREACH OF CONTRACT TO
THE EXTENT ARISING OUT OF OR IN CONNECTION WITH AN
ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL
PROPERTY INFRINGEMENT, OR FAILURE TO PAY A
SUBCONTRACTOR OR SUPPLIER COMMITTED BY THE
CONSULTANT OR THE CONSULTANT'S AGENT, CONSULTANT
UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE
CONSULTANT EXERCISES CONTROL (COLLECTIVELY
CONSULTANT'S PARTIES). IT IS THE EXPRESSED INTENTION
OF THE PARTIES HERETO, BOTH CONSULTANT AND OWNER,
THAT THE INDEMNITY PROVIDED FOR IN THIS PARAGRAPH
IS INDEMNITY BY CONSULTANT TO INDEMNIFY AND
PROTECT OWNER FROM THE CONSEQUENCES OF
CONSULTANT'S PARTIES' OWN WILLFUL MISCONDUCT,
JOINT OR SOLE NEGLIGENCE AS WELL AS THE
CONSULTANT'S PARTIES' INTENTIONAL TORTS,
INTELLECTUAL PROPERTY INFRINGEMENTS, AND FAILURES
TO MAKE PAYMENTS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT. SUCH INDEMNITY SHALL NOT
APPLY, HOWEVER, TO LIABILITY ARISING FROM THE
PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE OF
PERSONS THAT IS CAUSED BY OR RESULTS FROM THE
Page 1 of 2 Pages
(Exhibit K - Indemnification)
NEGLIGENCE OF ANY PERSON OTHER THAN THE
CONSULTANT'S PARTIES. IN THE EVENT THAT ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST THE OWNER FROM
WHICH THE OWNER IS INDEMNIFIED, CONSULTANT
FURTHER AGREES AND COVENANTS TO DEFEND THE
ACTION OR PROCEEDING BY LEGAL COUNSEL ACCEPTABLE
TO THE OWNER. THE INDEMNITY PROVIDED HEREINABOVE
SHALL SURVIVE THE TERMINATION AND /OR EXPIRATION
OF THIS AGREEMENT.
By this Agreement, the OWNER does not consent to litigation or suit, and the
OWNER hereby expressly revokes any consent to litigation that it may have
granted by the terms of this Contract or any other contract or agreement, any
charter, or applicable state law. Nothing herein shall be construed so as to limit or
waive OWNER'S sovereign immunity. CONSULTANT assumes full responsibility
for its work performed hereunder and hereby releases, relinquishes and discharges
OWNER, its officers, agents, and employees from all claims, demands, and causes of
action of every kind and character for any injury to or death of any person and /or
any loss of or damage to any property that is caused by or alleged to be caused by,
arising out of, or in connection with CONSULTANT's work to be performed
hereunder. This release shall apply with respect to CONSULTANT's work
regardless of whether said claims, demands, and causes of action are covered in
whole or in part by insurance.
The protections afforded to OWNER in this Exhibit K shall control and supersede
any apportionment of liability or release of liability contained elsewhere in the
Contract Documents. Furthermore, the provisions contained in this Exhibit "K"
shall survive the termination and /or expiration of this Agreement.
Page 2 of 2 Pages
(Exhibit K - Indemnification)