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Ordinance No. 11,915ORDINANCE NO. 11,915 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AND THE CITY CLERK TO ATTEST TO A PROFESSIONAL SERVICES AGREEMENT WITH SLATTERY TACKETT ARCHITECTS, LLP, FOR FIRE STATION NO. 7; AUTHORIZING PAYMENT BY THE CITY OF BAYTOWN IN AN AMOUNT NOT TO EXCEED TWO HUNDRED SEVENTY -THREE THOUSAND SEVEN HUNDRED FIFTY AND NO /100 DOLLARS ($273,750.00); MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. ** t+**+* a: kr+«*>k*+*+* �+* �►******** �****> k**«r �*«***>k �*>k �* � *��a *t�� *� * * *>k * *� * + *� +► * *►trw BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Professional Services Agreement with Slattery Tackett Architects, LLP, for Fire Station No. 7. 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 Slattery Tackett Architects, LLP, in an amount not to exceed TWO HUNDRED SEVENTY -THREE THOUSAND SEVEN HUNDRED FIFTY AND NO /100 DOLLARS ($273,750.00) 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 FIFTY THOUSAND AND NO /100 DOLLARS ($50,000.00) or less, provided that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent (25 %). INTRODUCED, READ, and PASSED by the affirmative vote o he City Council of the City of Baytown, this the 12 "' day of April, 2012. APPROVED AS TO FORM: CIGNACIO RAMIREZ, SR., City ttorney \ \Cobfs01 \legal \Karen\Files \City Counci1\0rdinances \2012\Apri1 12\ Prof essionsiServicesAgre emenmSlaveryTackcn4FimSmtionNo7 .doe Mayor • STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as oftheeday of oyesulit ,2012("Effective Date"). Between The City of Baytown ("OWNER") and Slattery Tackett Architects,L.L.P. ("CONSULTANT"). OWNER intends to engage CONSULTANT to perform architectural services related to the development a four-bay fire station facility housing firefighting and EMS personnel to be located on a 2.5 acre site on Eastpoint Blvd in Baytown, Texas, and designed in compliance with the requirements of the OWNER, the Texas Accessibility Standards, applicable Building Codes and all other applicable rules and regulations(the"Project")for and on behalf of the OWNER. CONSULTANT'S services shall include,but not be limited to,the following: ➢ Design Services; ➢ Construction Documents; ➢ Bid; and ➢ Construction Administration. 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 Pegg ARTICLE 1 -SERVICES OF CONSULTANT .................................................................................. ............................... 3 1.0 1 Scope .................................................................................................................................. ............................... 3 ARTICLE 2 - OWNER'S RESPONSIBILIT IES .................................................................................. ............................... 3 2.01 General ................................................................................................................................ ............................... 3 ARTICLE 3 -TIMES FOR RENDERING SERVICES ....................................................................... ............................... 3 3.01 General ................................................................................................................................ ............................... 3 3.02 Suspension .......................................................................................................................... ............................... 3 ARTICLE 4 - PAYMENTS TO CONSUUI'AN'E ................................................................................ ............................... 3 4.01 Methods of Payment for Services and Reimbursable Expenses of Consultant ................. ............................... 3 4.03 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 CONSI DERATIONS .................................................................................. ............................... 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 Severabiliq- ................................ 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 l Standard I:orm of Agreement Between Owner and Consultant far 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 - TIMES FOR RENDERING SERVICES 3.01 General A. (Modified) CONSULTANT's services and compensation under this Agreement have been agreed to for the design of the Project. CONSULTANT's obligation to render services hereunder will be for whatever period necessary for the final completion of said services. B. (Not Used). C. (Modified) For purposes of this Agreement the term "day" means a calendar day of 24 hours. 3.02 Suspension A. (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 3enices. OWNER shall pay CONSULTANT for Basic Services performed or furnished under Exhibit A, Part I, as set forth in Exhibit C. B. For Additional .Venlcay. 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 Erpenves. 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. 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 (f hnwicev. 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 otherwisc 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) Piowtent of lnroices. 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 alter 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. Mputed lmmoic ens. 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. Prn nenty Upon Termihariopi. 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 ofservice have been tendered to the OWNER. 2. (Not Used) E. (Modified) Records of CONSULTANT's Cans. 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 .-foie» u. 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) lndeble(biess. 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 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 arc 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 industn% 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 some 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. CONSULT'AN'T' 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 Standard Form of Agreement 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. 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) CONSUL'T'ANT 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 panics 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 - furnished data that may be relied upon by CONSULTANT are limited to the printed copies that are delivered to CONSULTANT pursuant to Exhibit B unless otherwise expressly stated or communicated by OWNER. Files in electronic media format of text, data. graphics, or of other types that are furnished by OWNER to CONSULTANT are only for convenience of CONSULTANT. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. C. Copies of Documents that may be relied upon by OWNER are limited to the printed copies (also known as hard copies) that are signed or sealed by the appropriate professional. Files in electronic media format of text, data. graphics, or of other types that are furnished by CONSULTANT to OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. D. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. The party delivering the electronic files will correct any errors detected within the 60-day acceptance period. CONSULTANT shall not be responsible to maintain documents stored in electronic media format after acceptance by OWNER. E. When transferring documents in electronic media format. CONSULTANT makes no representations as to long- term compatibility, usability, or readability of documents resulting from the use of software application packages. operating systems, or computer hardware differing from those used by CONSULTANT at the beginning of this Project. F. (Modified) Any use of the Documents on any extension of the Project or on any other project shall be at OWNER "s sole risk and OWNER hereby releases CONSULTANT from any liability associated solely with the reuse of the Documents. G. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. H. Any verification or adaptation of the Documents for extensions of the Project or for any other project will entitle CONSULTANT to further compensation at rates to be agreed upon by OWNER and CONSULTANT. 6.05 Insurance A. CONSULTANT shall procure and maintain insurance as set forth in Exhibit G. "Insurance." B. Not used. C. Not used. D. Not used. E. Not used. F. At any time, OWNER may request that CONSULTANT, at OWNER's sole expense, provide additional insurance coverage, increased limits, or revised deductibles that are more protective than those specified in Exhibit G. If so requested by OWNER, with the concurrence of CONSULTANT, and if commercially available. CONSULTANT shall obtain and shall require its Consultants to obtain such additional insurance coverage, different limits. or revised deductibles for such periods of time as requested by OWNER, and Exhibit G will be supplemented to incorporate these requirements. 6.06 Termination A. (Modified) 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 Norm 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 6.08.8 the assigns of OWNER and CONSULTANT) are hereby bound to the other parry to this Agreement and to the partners, successors. executors, administrators and legal representatives (and said assigns) of such other party. in respect of all covenants, agreements and obligations of this Agreement. B. Neither OWNER nor CONSULTANT may assign, sublet, or transfer any rights under or interest (including, but without limitation, moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create, impose, or give rise to any duty owed by OWNER or CONSULTANT to any Contractor. Contractor's subcontractor, supplier. other individual or entity. or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and CONSULTANT and not for the benefit of any other party. The OWNER agrees that the substance of the provisions of this paragraph 6.08.0 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 far 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 Standard Form of Agreement 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 CONSULTANTs terminating this Agreement for cause on 30 days' notice. 6.11 Allocation of Risks A. (Modified) Indemnification. Sec 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 1X- 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 Ix- 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 I. 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 fi)r Pm-ment --The form acceptable to CONSULTANT which is to be used by Contractor in requesting progress or final payments far 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 .5emices -=The services to be performed for or Mmished to OWNER by CONSULTANT in accordance with Exhibit A, Part I, 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. S. 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, ifany. 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. C'ottviruction Agreement- -The written instrument which is evidence of the agreement, contained in the Contract Documents. between OWNER and Contractor covering the Work. 11. C'ottvtruction C mitract --The entire and integrated written agreement between the OWNER and Contractor concerning the Work. 12. Comstruction Cost --The cost to OWNER of those portions of Cite 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 Cite items comprising Total Project Costs. 13. (Modifued) Contract Doc-rur eats -- 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. C'ontract 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 Tin a --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. CYoittructur --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. I8. 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. Docunsenix- -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. Drmrings- -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. E,,Jj cin•e Date t f the C'omviructiwt 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. E,,Ueciive Data t J' the Agreentem --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. C oipertliuptty -- Individuals or entities having a contract with CONSULJANT to furnish 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 C'ondidans -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. Hr:- ardous Environmental Condition- -The presence at the Site of Asbestos, PCB's. Petroleum, Hazardous Waste, or Radioactive Materials in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 28. Hmardons Waste --They 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. Lmrs and Regulatlot &v. l cnrx 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 bipltenyls. 31. Petroleum »Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degree's 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 A•lateria /.s -- 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 Dram» gs --They 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. Reside►int Project Repro sentatn•e --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..Sansples -- 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..51nop DemrinRs —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. -Vile—Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed rights-or-way and easements for access thereto, and such other lands furnished by OWNER which are designated for use of Contractor. 39..Spc►cifrcations --That par 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 Standard Form of Agreement Between Owner and Architect for Professional Services Page 10 of 12 applied to all or parr of the Work refer to Substantial Completion thereof. 41. Supplententart, C miditiutrs --That part of the Contract Documents which amends or supplements the General Conditions. 42. (Modified) Total Pr(Yevt C casts --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 far 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. i{'ork »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. 11'ark Change Direcilve --A written directive to Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon recommendation of the CONSUL'T'ANT, 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 'rimes 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. H'ritteir Anietidinent --A written amendment of the Contract Documents signed by OWNER and Contractor on or after the Effective Date of the Construction Agreement and normally dealing with the non - architectural or non - technical rather than strictly construction - related aspects of the Contract Documents. ARTICLE 8 - EXHIBITS AND SPECIAL PROVISIONS 8.01 Exhibits Included A. Exhibit A. "CONSULTANT's Services." consisting of seven (7) pages. B. Exhibit B, •`OWNER's Responsibilities;' consisting of two (2) pages. C. Exhibit C, "Payments to CONSULTANT for Services and Reimbursable Expenses." consisting of two (2) pages. D. Exhibit D. "Duties, Responsibilities and Limitations of Authority of Resident Project Representative." is not used. E. Exhibit E. -Notice of Acceptability of Work." is not used. F. Exhibit F, -Construction Cost Limit," is not used. G. Exhibit G, "Insurance;' consisting of two (2) pages. H. Exhibit H. "Dispute Resolution," is not used. 1. Exhibit I, "Allocation of Risks," is not used. J. Exhibit J. "Special Provisions" is not used. K. (Added) Exhibit K, "Indemnification" consisting of two (2) pages. 8.02 Total Agreement A. This Agreement (consisting of pages 1 to 12 inclusive, together with the Exhibits identified above) constitutes the entire agreement between OWNER and CONSULTANT and supersedes all prior written or oml 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 r IN WITNESS WHEREOF,the parties hereto have executed this Agreement,the Effective Date of which is indicated on page 1. OWNER: CITY OF BAYTOWN CONSU ANT: SLATTERY TACKETT A CHITECTS,L.L.P. • E T D.LEIPER GE L ACKE T,AIA Title: City Manager Title: General Partner Date Signe , 3 , Date Signed:Q t tAAer441k 20l 9- Address igIvn_ of s: aQ• Address for giving notices: P.O.BO 1 o°1 730 NORTH POST OAK ROAD, SUITE 200 BAYTO 1geI , HOUSTON,TEXAS 77024 Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A): JOSE A.PASTRANA,P.E. GERALD TACKETT AIA Title:Director of Engineering Title: Partner Phone Number: (281)420-7154 Phone Number: (713)521-0591 Facsimile Number: (281)420-6586 Facsimile Number: (713)682-2356 E-Mail Address: jose.pastrana@baytown.org E-Mail Address:gerald.tackett@slatterytackett.com Standard Form of Agreement Between Owner and Architect for Professional Services Page 12 of 12 411) This is EXHIBIT A, consisting of 7 pages, referred to in and part of the Agreement between OWN �n CONSULTANT for Professional Services dated 7� Cr- Initial: /W., OWNER CONSULTANT CONSULTANT's Services Article 1 of the Agreement is amended and supplemented to include the following agreement of the parties. CONSULTANT shall provide Basic and Additional Services as set forth below. PART 1 --BASIC SERVICES(Modified) A 1.01 Preliminary 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 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 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, requirement of the Texas Accessibility Standards of the Architectural Barriers Act. CONSULTANT shall obtain approvals from such governmental authorities at the appropriate phase of services required herein. 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. (Added) Prepare and provide schematic design documents based on the mutually agreed upon program, schedule and estimated budget for the Cost of the Work. The documents shall establish the conceptual design of the Project and shall include conceptual floor plans,building elevations and site plan. 8. (Modified) Prepare a preliminary report (the "Report") which will, as appropriate, further refine the schematic design documents, 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 the estimated Page 1 of 7 pages (Exhibit A—Architect's Services) 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. 5. Furnish three (3) review copies of the Report to OWNER within fitly -six (56) days of authorization to begin services and review it with OWNER. 6. Revise the Report in response to OWNER's and other parties' comments, as appropriate, and furnish five (5) renal 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 Preliminary Design Phase will be considered complete on the date when the final copies of the revised Report have been delivered to and accepted by OWNER. A 1.02 Final Design Phase B. CONSULTANT shall: (Modified) On the basis of the above acceptance, direction, and authorization, prepare renal 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 riling 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.S. 4. Perform or provide the following additional final Design Phase tasks or deliverables: I . CONSULTANT will bring on design consultants such as mechanical, electrical and plumbing, and other required consultants to complete the balance of the work. 2. 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. 3. 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 Bidding/Construction Documents, which shall include Drawings and Specifications that establish in detail the quality levels of materials and project systems required for construction, for the OWNER's review and comment within one hundred twelve (113) calendar 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 Page 2 of 7 pages (Exhibit A — Architect's Services) A 1.03 Bidding; or Negotiating Pliase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed. CONSULTANT shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and. where applicable. 2. Answer questions and issue Addenda as appropriate to clarity, 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. S. (Modifed) Attend the Mandatory Pre-Bid Conference and the Bid opening, prepare Bid tabulation sheets, assemble contract documents, assist OWNER in both evaluating Bids or proposals and awarding contracts for the Work. 6. (Added) Assist in connection with Bid protests, rebidding, or re- negotiating contracts for construction, materials, equipment. or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A 1.0.1 Co truction Pltave A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization from OWNER. CONSULTANT shall: I. 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 ofOWNER'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) Convtrrrction and ,tlateriaLv Tasting. 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- Convtrrrction Conference. Participate in a Pre - Construction Conference prior to commencement of wort: at the Site. Page 3 of 7 pages (Exhibit A — Architect's Services) 4. Bt elincs 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 Obsen -ation c f C oiumuction. In connection with observations of Contractor's ►vork 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 of %rts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. CONSULTANT shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall CONSULTANT have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work. or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective 1{'ork. 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. Clurifications 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. Page 4 of 7 pages (Exhibit A — Architect's Services) 9. Shop Drmrings and .Sainples. 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 lob 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. Substitutes and "or- otlual. " 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. lnspec6ons 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 UIVNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show partiality to OWNER or Contractor. 13. Applications for PMvnent. Based on CONSULTANT's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute CONSULTANT's representation to OWNER, based on such observations and review, that, to the best of CONSULTANT "s knowledge. information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price work. CONSULTANT's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of CONSULTANT contained in paragraph A 1.03.A.5.a arc expressly subject to the limitations set forth in paragraph A l .Od.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 Page 5 of 7 pages (Exhibit A — Architect's Services) Contractors 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 Sen ►ices 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. 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 I.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 in hard copy, 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 Wort: 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 Xotice of .dcceptahilint i f the 11'ark. 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. dw Work is acceptable and is in compliance with the Contract Documents. B. Duration q f 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 Page 6 of 7 pages (Exhibit A — Architect's Services) 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 Additional Sen�ices Regnb ftr OIYNER's AuthorL-,ation iii Advancr 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 C NS LTANT for Professional Services dated v Initial: i OWNER CONSULTANT OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,OWNER shall: A. Provide CONSULTANT with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability,and any budgetary limitations;and furnish copies 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) H. (Not Used). 1. (Not Used). J. Advise CONSULTANT of the identity and scope of services of any independent consultants employed by OWNER to perform or furnish services in regard to the Project. including, but not limited to, cost estimating, project peer review, value architectural, and constructability review. K. Furnish to CONSULTANT data as to OWNER's anticipated costs for services to be provided by others for OWNER so that CONSULTANT may make the necessary calculations to develop and periodically adjust CONSULTANT's opinion of Total Project Costs. L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition to. CONSULTANT to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of authority ofsuch 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. if any. to CONSULTANT during construction phase. Page 2 of 2 pages (Exhibit B - OWNER's Responsibilities) • s This is EXHIBIT C, consisting of 2 pages, referred to in and part of the Agreement between OWNER and CMSULTANT for Professional Services dated Initial: /4 ' `-' OWNER CONSULTANT Payments to CONSULTANT for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of 4. Not Used. the parties: 5. The portion of the amount billed for ARTICLE 4 -- PAYMENTS TO THE CONSULTANT's services will be based upon CONSULTANT total services actually completed during the billing period, which shall be a calendar month. C4.0 1 For Basic Services Having A Determined Invoices shall be tendered no more often than Scope —Cost not to Exceed Method of once a month for all of the services performed Payment during the applicable month. A. OWNER shall pay CONSULTANT for Basic Services set forth in Exhibit A as follows: C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor 1. (Modified) A cost not to exceed Method of Payment amount of $180,400.00, based upon the rate schedule, which is attached as Appendix 1 of A. (Not Used). Exhibit C and incorporated herein for all intents and purposes. This amount does includes those C4.03 For Additional Services CONSULTANT'S consultant's charges and will be distributed at the completion of each phase in A. OWNER shall pay CONSULTANT for the following amount: Additional Services as follows: 1. Preliminary Design Phase $45,100.00 1. General. For services of 2. Final Design Phase $81,180.00 CONSULTANT's employees engaged directly 3. Bidding/Negotiating Phase $ 9,020.00 on the Project pursuant to paragraph Part 1 of 4. Construction Phase $45,100.00 Exhibit A of the Agreement, except for services as a consultant, an amount based upon the actual 3.2. (Modified) CONSULTANT may with hours worked and the rate schedule, which is the consent of OWNER alter the distribution of attached as Appendix 1 of Exhibit C and compensation between individual phases noted incorporated herein for all intents and purposes herein to be consistent with services actually plus Reimbursable Expenses. Additional rendered, but shall not exceed the total cost not Services shall not exceed$0.00 without the prior to exceed amount unless approved in writing by written consent of the Owner. the OWNER. 2. (Not Used). 3. The cost not to exceed includes compensation for CONSULTANT's services and C4.04 For Reimbursable Expenses services of its Consultants, if any. Appropriate amounts have been incorporated in the cost not A. (Modified) When not included in to exceed to account for labor, overhead and compensation for Basic Services under paragraph profit. C4.01, OWNER shall pay CONSULTANT for Page 1 of 2 pages (Exhibit C-Basic Services With Determined Scope--Cost not to exceed Method) 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 $1 2.000.00. 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 1.00. 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 some are incurred. If such approval is not obtained, the OWNER shall not be liable for such travel expenses. C4.05 For CONSULTANT's Comitilant 's Chargav 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: Topographic Survey ....... ......................$4.700.00 Geotechnical Investigation ...................$4?00.00 Landscape Design ........... ......................$8.500.00 Civil Engineering ........... .....................$20.350.00 Structural Engineering ........................ $19,000.00 MEP Engineering .......... .....................$24,600.00 C4.06 Direci Labor Costs A. (Not Used). B. (Not Used). 4.07 Rate Schedule A. (Not used) B. (Not used). C4.08 Odyer Pi ovitiions C imrcerlri» g Paymew 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 RATESCHEDULE Employee Classification Maximum Hourly Rate Principal Pro cct Eksi ner /Pro ect Architect _S125.00 S90.00 Senior Technician $ 75.00 Technician S50.00 Clerical $45.00 Page 1 or i pages (Appendix 1 to Exhibit C Rare Sclie(Ittle) TAS plan review: Cost Reproduction and Deliveries: Cost Mileage: IRS Rate APPENDIX 2 OF EXHIBIT C REIMBURSEMENT OF COSTS Past 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 C SU TANT for Professional Services dated .a— Initial: OWNER CONSULTANT Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance Throughout the term of this Agreement,the CONSULTANT at its own expense shall purchase,maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the CONSULTANT's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the CONSULTANT, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The CONSULTANT's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of the CONSULTANT's insurance and shall not contribute to it. Further, the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability(CGL) General Aggregate: $1,000,000 Products&Completed Operations: $1,000,000 Personal&Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy(BAP) Combined Single Limits: $1,000,000 a. Coverage for"Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability$500,000 Waiver of Subrogation required Errors&Omissions(E&O) Limit: $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 +:VII or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. C. Liability policies will be on occurrence form. E & O can be on claims -made form. d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. e. Upon request of and without cost to OWNER, certified copies of all insurance policies and/or certificates of insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to OWNER's representative prior to execution of this agreement. f. Upon request of and without cost to OWNER. loss runs (claims listing) of any and /or all insurance coverage shall be furnished to OWNER's representative. Page 2 of 2 pages (Exhibit G - Insurance) • • This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and C S TANTT for Professional Services dated Initial: `i OWNER 14 CONSULTANT 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 3 Pages ( Exhibit K - Indemnification) y ? e a STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONSULTANT FOR PROFESSIONAL SERVICES THIS AGREEMENT effective as oftheL5rnday of 2012("Effective Date"). Between The City of Baytown ("OWNER") and Slattery Tackett Architects, L.L.P. ("CONSULTANT"). OWNER intends to engage CONSULTANT to perform architectural services related to the development a four-bay fire station facility housing firefighting and EMS personnel to be located on a 2.5 acre site on Eastpoint Blvd in Baytown, Texas, and designed in compliance with the requirements of the OWNER, the Texas Accessibility Standards,applicable Building Codes and all other applicable rules and regulations(the"Project")for and on behalf of the OWNER. CONSULTANT'S services shall include,but not be limited to,the following: ➢ Design Services; ➢ Construction Documents; ➢ Bid;and ➢ Construction Administration. 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 Pale ARTICLE 1 -SERVICES OF CONSULTANT.................................................................................................................3 1.01 Scope.................................................................................................................................................................3 ARTICLE 2-OWNER'S RESPONSIBILITIES.................................................................................................................3 2.01 General............................ 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 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 .10 Hazardous Environmental Condition................................................................................................................7 6.11 Allocation of Risks............................................................................................................................................8 6.12 Notices...............................................................................................................................................................8 6.13 Survival..............................................................................................................................................................8 6.14 Severabi l ity........................................................................................................................................................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.............................................................................................................................................. 11 Standard Form of Agreement Between Owner and Consultant for Professional Services Page 2 of 12 rr 1 ARTICLE 1 -SERVICES OF CONSULTANT suspension, CONSULTANT shall have no right to seek additional compensation. 1.01 Scope ARTICLE 4-PAYMENTS TO CONSULTANT A. CONSULTANT shall provide the Basic and Additional Services set forth herein and in Exhibit A. 4.01 Methods of Payment for Services and Reimbursable Expenses of CONSULTANT B. Upon issuance of a notice to proceed by the OWNER, CONSULTANT is authorized to begin Basic A. For Basic Services. OWNER shall pay Services as set forth in Exhibit A. CONSULTANT for Basic Services performed or furnished under Exhibit A, Part 1,as set forth in Exhibit C. C. (Not Used). B. For Additional Services. OWNER shall pay ARTICLE 2-OWNER'S RESPONSIBILITIES CONSULTANT for Additional Services performed or furnished under Exhibit A, Part 2,as set forth in Exhibit C. 2.01 General C.(Modified) For Reimbursable Expenses. In addition to payments provided for in paragraphs 4.01.A and A. OWNER shall have the responsibilities set forth 4.01.B. OWNER shall pay CONSULTANT for Reimbursable herein and in Exhibit B. Expenses incurred by CONSULTANT and its Consultants as set forth in Exhibit C. However, all expenses associated with meals and lodging must be approved in writing by OWNER ARTICLE 3-TIMES FOR RENDERING SERVICES 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 3.01 General make a claim against OWNER for any such expenses. A. (Modified) CONSULTANT's services and 4.02 Other Provisions Concerning Payments compensation under this Agreement have been agreed to for the design of the Project. CONSULTANT's obligation to A. Preparation of Invoices. Invoices will be prepared render services hereunder will be for whatever period in accordance with OWNER's standard processing practices necessary for the final completion of said services. and will be submitted to OWNER monthly via mail or email by CONSULTANT, unless otherwise agreed. B. (Not Used). CONSULTANT shall supply detailed back-up information along with each invoice in order for the OWNER to C. (Modified) For purposes of this Agreement the term effectively evaluate the fees and charges. The amount billed "day"means a calendar day of 24 hours. in each invoice will be calculated as set forth in Exhibit C. 3.02 Suspension B.(Modified) Payment of Invoices. Invoices are due and payable within 30 days after the receipt of the invoice and A.(Not used). the necessary backup information. If OWNER fails to make any payment due CONSULTANT for services and expenses B. (Modified) If CONSULTANT's services are delayed within 30 days after receipt of CONSULTANT's invoice and or suspended in whole or in part by OWNER, the required backup documentation therefor, the amounts due CONSULTANT may be entitled to equitable adjustment of CONSULTANT will accrue interest at the rate set forth in rates and amounts of compensation provided for elsewhere in Section 2251.025 of the Texas Government Code after the this Agreement to reflect, reasonable costs incurred by 30th day. CONSULTANT may after giving seven days' CONSULTANT in connection with such delay or suspension written notice to OWNER suspend services under this and reactivation and the fact that the time for performance Agreement until CONSULTANT has been paid in full all under this Agreement has been revised, unless such delay or amounts due for services, expenses, and other related charges. suspension is caused in whole or in part by the However, it is expressly understood and agreed that CONSULTANT, its officers, agents, or employees. If CONSULTANT will not charge any interest or penalty as set CONSULTANT causes or contributes to the delay or 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 ARTICLE 5-OPINIONS OF COST 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. 5.01 Opinions of Probable Construction Cost C. Disputed Invoices. In the event of a disputed or A. CONSULTANT's opinions of probable contested invoice, only that portion so contested may be Construction Cost provided for herein are to be made on the withheld from payment, and the undisputed portion will be basis of CONSULTANT's experience and qualifications and paid. represent CONSULTANT's best judgment as an experienced and qualified professional generally familiar with the industry. D. Payments Upon Termination. However, since CONSULTANT has no control over the cost of labor, materials,equipment,or services furnished by others, In the event of any termination under section 6.06, or over the Contractor's methods of determining prices, or CONSULTANT will be entitled to invoice OWNER and over competitive bidding or market conditions, will be paid in accordance with Exhibit C for all services CONSULTANT cannot and does not guarantee that performed or furnished and all Reimbursable Expenses proposals,bids, or actual Construction Cost will not vary from incurred through the effective date of termination provided opinions of probable Construction Cost prepared by all instruments of service have been tendered to the OWNER. CONSULTANT. If OWNER wishes greater assurance as to probable Construction Cost, OWNER shall employ an 2. (Not Used) independent cost estimator as provided in Exhibit B. E.(Modified) Records of CONSULTANT's Costs. 5.02 (Not Used) Records of CONSULTANT's costs pertinent to CONSULTANT's compensation under this Agreement shall be kept in accordance with generally accepted accounting 5.03 Opinions of Total Project Costs practices. Copies of such records will be made available to OWNER upon request at no cost to OWNER. A. (Not used). F. Legislative Actions. In the event of legislative ARTICLE 6-GENERAL CONSIDERATIONS 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 6.01 Standards of Performance this Project or compensation therefor, such new taxes, fees, or costs shall be invoiced to and paid by OWNER as a A. (Modified)The standard of care for all services to be Reimbursable Expense to which a Factor of 1.0 shall be performed or furnished under this Agreement will be the care applied. Should such taxes, fees, or costs be imposed, they and skill ordinarily used by members of the applicable shall be in addition to CONSULTANT's estimated total disciplines, including, but not limited to, architects and compensation. professional engineers, practicing under similar circumstances at the same time and in the same locality. G. (Added) Indebtedness. If CONSULTANT, at any B. Modified All professionals performing services(Modified) p p g time during the term of this agreement, incurs a debt, as the under this Agreement shall be responsible for g p the technical word is defined in section 2-662 of the Code of Ordinances accuracyof their services and documents resultingtherefrom, of the City of Baytown, it shall immediately notify the e om, and OWNER shall not be responsible for discovering OWNER's Director of Finance in writing. If the OWNER's deficiencies therein. CONSULTANT shall correct h Director of Finance becomes aware that the CONSULTANT such has incurred a debt, the OWNER's Director of Finance shall deficiencies without additional compensation except to the immediately notify the CONSULTANT in writing. If the extent such action is directly attributable to deficiencies in g OWNER-furnished information upon which CONSULTANT CONSULTANT does not pay the debt within 30 days of is authorized to relyas provided in Section 6.01.E either such notification, the OWNER's Director of Finance may deduct funds in an amount equal to the debt from any C. CONSULTANT shall perform p or furnish payments owed to the CONSULTANT under this professional architectural engineering and related services in Agreement, and the CONSULTANT waives any recourse p en g g all phases of the Project to which this Agreement applies. therefor. Such professionals shall be appropriately licensed sed and/or registered to practice in the State of Texas. CONSULTANT Standard Form of Agreement Between Owner and Architect for Professional Services Page 4 of 12 shall serve as OWNER's prime professional for the Project. responsibility for the means, methods, techniques, sequences, CONSULTANT shall employ such professionals as or procedures of construction selected by Contractor, for CONSULTANT deems necessary to assist in the performance safety precautions and programs incident to the Contractor's or furnishing of the services. CONSULTANT shall not be work in progress, nor for any failure of Contractor to comply required to employ any professional unacceptable to with Laws and Regulations applicable to Contractor's CONSULTANT. furnishing and performing the Work. D. CONSULTANT and OWNER shall comply with J.(Modified)CONSULTANT neither guarantees the applicable Laws or Regulations and OWNER-mandated performance of any Contractor nor assumes responsibility for standards. This Agreement is based on these requirements as any Contractor's failure to furnish and perform the Work in of its Effective Date. Changes to these requirements after the accordance with the Contract Documents. However, nothing Effective Date of this Agreement may be the basis for contained in this paragraph shall be construed so as to absolve modifications to OWNER's responsibilities or to CONSULTANT from liability for any such failure about CONSULTANT's scope of services,times of performance,or which CONSULTANT knew or should have known existed in compensation. the exercise of CONSULTANT's services under this Agreement. E.(Modified) OWNER shall be responsible for, and CONSULTANT may rely upon, the accuracy and K. (Modified) CONSULTANT shall not be responsible completeness of all requirements, programs, instructions, for the acts or omissions of any Contractor(s), subcontractor reports, data, and other information furnished by OWNER to or supplier, or of any of the Contractor's agents or employees CONSULTANT pursuant to this Agreement, unless expressly or any other persons (except CONSULTANT's own stated or communicated otherwise by OWNER. employees and its consultants for which it is legally liable) at CONSULTANT may use such requirements, reports, data, the Site or otherwise furnishing or performing any of the and information in performing or furnishing services under Contractor's work;or for any decision made on interpretations this Agreement. or clarifications of the Contract Documents given by OWNER without consultation and advice of CONSULTANT. F. OWNER shall make decisions and carry out its other responsibilities in a timely manner and shall bear all costs L.(Modified) The General Conditions for any incident thereto so as not to delay the services of construction contract documents prepared hereunder are to be CONSULTANT. the Standard Form of Agreement between Owner and Contractor and as approved by OWNER in writing. G. Prior to the commencement of the Construction Phase, OWNER shall notify CONSULTANT of any 6.02 Authorized Project Representatives variations from the language indicated in Exhibit E,"Notice of Acceptability of Work," or of any other notice or certification A. Contemporaneous with the execution of this that CONSULTANT will be requested to provide to OWNER Agreement, CONSULTANT and OWNER shall designate or third parties in connection with the Project. OWNER and specific individuals to act as CONSULTANT's and CONSULTANT shall reach agreement on the terms of any OWNER's representatives with respect to the services to be such requested notice or certification, and OWNER shall performed or furnished by CONSULTANT and authorize such Additional Services as are necessary to enable responsibilities of OWNER under this Agreement. Such CONSULTANT to provide the notices or certifications individuals shall have authority to transmit instructions, requested. receive information, and render decisions relative to the Project on behalf of each respective party. H. (Modified) CONSULTANT shall not be required to sign any documents,no matter by whom requested,that would 6.03(Not Used) result in CONSULTANT's having to certify, guarantee or warrant the existence of conditions whose existence 6.04 Use of Documents CONSULTANT cannot ascertain; provided, that CONSULTANT has exercised due diligence and was not A. (Modified) Upon execution of this Agreement, the otherwise required to certify, guarantee or warrant the CONSULTANT grants to the OWNER an ownership interest existence of such conditions. in the Instruments of Service. The CONSULTANT shall obtain similar interests from its consultants consistent with this I. During the Construction Phase, CONSULTANT Agreement. Within seven days of any termination or shall not supervise, direct, or have control over Contractor's expiration of this Agreement, the CONSULTANT shall be work, nor shall CONSULTANT have authority over or required to tender to OWNER all Instruments of Service; Standard Form of Agreement Between Owner and Architect for Professional Services Page 5 of 12 r ,44�_, t , provided OWNER has paid all monies, excluding any operating systems, or computer hardware differing from those disputed amount, due and owing to CONSULTANT in used by CONSULTANT at the beginning of this Project. accordance with this Agreement. With such ownership interest, it is expressly understood by the parties hereto that F. (Modified) Any use of the Documents on any the OWNER may use the Instruments of Service for any extension of the Project or on any other project shall be at purposes which the OWNER sees fit, including, but not OWNER's sole risk and OWNER hereby releases limited to, subsequent construction, reconstruction, alteration, CONSULTANT from any liability associated solely with the and/or repairs of the Project. As a condition to the OWNER's reuse of the Documents. use of the Instruments of Service, the OWNER hereby expressly agrees to remove the CONSULTANT's name and G. If there is a discrepancy between the electronic files all references to the CONSULTANT,and its consultants from and the hard copies,the hard copies govern. the Documents. The OWNER hereby releases any and all claims which the OWNER could make arising out of or in H. Any verification or adaptation of the Documents for connection with any reuse of the documents by the OWNER. extensions of the Project or for any other project will entitle This release of claims for the matters covered in this CONSULTANT to further compensation at rates to be agreed Paragraph 6.04.A shall be for the benefit of the upon by OWNER and CONSULTANT. CONSULTANT, its officers, and employees and sub- consultants,as well as their successors and assigns. 6.05 Insurance B. (Modified) Copies of OWNER-furnished data that A. CONSULTANT shall procure and maintain may be relied upon by CONSULTANT are limited to the insurance as set forth in Exhibit G,"Insurance." printed copies that are delivered to CONSULTANT pursuant to Exhibit B unless otherwise expressly stated or B. Not used. communicated by OWNER. Files in electronic media format of text, data, graphics, or of other types that are furnished by C. Not used. OWNER to CONSULTANT are only for convenience of CONSULTANT. Any conclusion or information obtained or D. Not used. derived from such electronic files will be at the user's sole risk. E. Not used. C. Copies of Documents that may be relied upon by F. At any time, OWNER may request that OWNER are limited to the printed copies(also known as hard CONSULTANT, at OWNER's sole expense, provide copies) that are signed or sealed by the appropriate additional insurance coverage, increased limits, or revised professional. Files in electronic media format of text, data, deductibles that are more protective than those specified in graphics, or of other types that are furnished by Exhibit G. If so requested by OWNER, with the concurrence CONSULTANT to OWNER are only for convenience of of CONSULTANT, and if commercially available, OWNER. Any conclusion or information obtained or derived CONSULTANT shall obtain and shall require its Consultants from such electronic files will be at the user's sole risk. to obtain such additional insurance coverage, different limits, or revised deductibles for such periods of time as requested by D. Because data stored in electronic media format can OWNER, and Exhibit G will be supplemented to incorporate deteriorate or be modified inadvertently or otherwise without these requirements. authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or 6.06 Termination procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. A.(Modified) The obligations hereunder may be The party delivering the electronic files will correct any errors terminated: detected within the 60-day acceptance period. CONSULTANT shall not be responsible to maintain 1. For cause, documents stored in electronic media format after acceptance by OWNER. a. (Modified) By either party upon 30 days' written notice in the event of failure by the other E. When transferring documents in electronic media party to perform in accordance with the terms hereof format, CONSULTANT makes no representations as to long- through no fault of the terminating party;or term compatibility, usability, or readability of documents resulting from the use of software application packages, Standard Form of Agreement Between Owner and Architect for Professional Services Page 6 of 12 1 b. By CONSULTANT upon seven days' written notice if CONSULTANT is being requested 1. Nothing in this Agreement shall be construed to by OWNER to furnish or perform services contrary create, impose, or give rise to any duty owed by OWNER to CONSULTANT's responsibility as a licensed or CONSULTANT to any Contractor, Contractor's professional. subcontractor, supplier, other individual or entity, or to any surety for or employee of any of them. c. Notwithstanding the foregoing, this Agreement will not terminate as a result of such 2. All duties and responsibilities undertaken substantial failure if the party receiving such notice pursuant to this Agreement will be for the sole and begins,within seven days of receipt of such notice,to exclusive benefit of OWNER and CONSULTANT and correct its failure to perform and proceeds diligently not for the benefit of any other party. The OWNER to cure such failure within no more than 30 days of agrees that the substance of the provisions of this receipt thereof; provided, however, that if and to the paragraph 6.08.0 shall appear in the Contract Documents. extent such substantial failure cannot be reasonably cured within such 30 day period, and if such party 6.09 Not Used. has diligently attempted to cure the same and thereafter continues diligently to cure the same then 6.10 Hazardous Environmental Condition the cure period provided for herein shall extend up to, but in no case more than 60 days after the date of A. OWNER represents to CONSULTANT that to the receipt of the notice. best of its knowledge a Hazardous Environmental Condition does not exist. 2. For convenience by OWNER effective upon the receipt of notice by CONSULTANT. B.(Modified) OWNER has disclosed to the best of its knowledge and belief to CONSULTANT the existence of B. Not used. all Asbestos, PCB's, Petroleum, Hazardous Waste, or Radioactive Material located at or near the Site, including 6.07 Controlling Law type,quantity and location. A. This Agreement is to be governed by the law of the C.(Modified) If a Hazardous Environmental state in which the Project is located. Condition is encountered or alleged, CONSULTANT shall have the obligation to notify OWNER on or before the next 6.08 Successors,Assigns,and Beneficiaries business day of the same. A. OWNER and CONSULTANT each is hereby bound D. It is acknowledged by both parties that and the partners, successors, executors, administrators and CONSULTANT's scope of services does not include any legal representatives of OWNER and CONSULTANT(and to services related to a Hazardous Environmental Condition. In the extent permitted by paragraph 6.08.13 the assigns of the event CONSULTANT or any other party encounters a OWNER and CONSULTANT) are hereby bound to the other Hazardous Environmental Condition, CONSULTANT may, party to this Agreement and to the partners, successors, at its option and without liability for consequential or any executors, administrators and legal representatives (and said other damages, suspend performance of services on the assigns) of such other party, in respect of all covenants, portion of the Project affected thereby until OWNER: (i) agreements and obligations of this Agreement. retains appropriate specialist consultant(s) or contractor(s) to identify and, as appropriate, abate, remediate, or remove the B. Neither OWNER nor CONSULTANT may assign, Hazardous Environmental Condition;and(ii)warrants that the sublet, or transfer any rights under or interest (including, but Site is in full compliance with applicable Laws and without limitation,moneys that are due or may become due)in Regulations. this Agreement without the written consent of the other, except to the extent that any assignment,subletting,or transfer E. OWNER acknowledges that CONSULTANT is is mandated or restricted by law. Unless specifically stated to performing professional services for OWNER and that the contrary in any written consent to an assignment, no CONSULTANT is not and shall not be required to become an assignment will release or discharge the assignor from any "arranger," "operator," "generator," or "transporter" of duty or responsibility under this Agreement. hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act of C. Unless expressly provided otherwise in this 1990 (CERCLA), which are or may be encountered at or near Agreement: Standard Form of Agreement Between Owner and Architect for Professional Services Page 7 of 12 the Site in connection with CONSULTANT's activities under this Agreement. ARTICLE 7- DEFINITIONS F. If CONSULTANT's services under this Agreement cannot be performed because of a Hazardous Environmental 7.01 Defined Terms Condition, the existence of the condition shall justify CONSULTANT's terminating this Agreement for cause on 30 A. Wherever used in this Agreement (including the days' notice. Exhibits hereto) and printed with initial or all capital letters, the terms listed below have the meanings indicated, which 6.11 Allocation of Risks are applicable to both the singular and plural thereof A. (Modified) Indemnification. See Exhibit K. 1. Addenda--Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Documents. 6.12 Notices 2. Additional Services--The services to be A. (Modified) Any notice required under this performed for or furnished to OWNER by Agreement will be in writing, addressed to the appropriate CONSULTANT in accordance with Exhibit A, Part 2 of party at its address on the signature page and given personally, this Agreement. or by registered or certified mail postage prepaid, or by a commercial courier service. Additionally, notices may be 3. Agreement--This "Standard Form of Agreement given via facsimile or by electronic mail if such notice is also between OWNER and CONSULTANT for Professional given personally, or by registered or certified mail or by a Services," including those Exhibits listed in Article 8 commercial courier service. All notices shall be effective hereof. upon the date of receipt. 4. Application for Payment--The form acceptable 6.13 Survival to CONSULTANT which is to be used by Contractor in requesting progress or final payments for the completion A. (Modified) All express representations, of its Work and which is to be accompanied by such indemnifications, and limitations of liability included in this supporting documentation as is required by the Contract Agreement will survive its completion or termination for any Documents. reason. 5. Asbestos--Any material that contains more than 6.14 Severability one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established A. Any provision or part of the Agreement held to be by the United States Occupational Safety and Health void or unenforceable under any Laws or Regulations shall be Administration. deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONSULTANT, 6. Basic Services--The services to be performed who agree that the Agreement shall be reformed to replace for or furnished to OWNER by CONSULTANT in such stricken provision or part thereof with a valid and accordance with Exhibit A, Part 1,of this Agreement. enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 7. Bid--The offer or proposal of the bidder submitted on the prescribed form setting forth the prices 6.15 Waiver for the Work to be performed. A. Non-enforcement of any provision by either party 8. Bidding Documents--The advertisement or shall not constitute a waiver of that provision, nor shall it invitation to Bid, instructions to bidders,the Bid form and affect the enforceability of that provision or of the remainder attachments, the Bid bond, if any, the proposed Contract of this Agreement. Documents,and all Addenda,if any. 6.16 Headings 9. Change Order--A document recommended by CONSULTANT, which is signed by Contractor and A. The headings used in this Agreement are for general OWNER to authorize an addition, deletion or revision in reference only and do not have special significance. the Work, or an adjustment in the Contract Price or the Standard Form of Agreement Between Owner and Architect for Professional Services Page 8of 12 t t Contract Times, issued on or after the Effective Date of ready for final payment as evidenced by the Construction Agreement. CONSULTANT's written recommendation of final payment. 14. Construction Agreement--The written instrument which is evidence of the agreement, contained 16. Contractor--An individual or entity with whom in the Contract Documents, between OWNER and OWNER enters into a Construction Agreement. Contractor covering the Work. 17. Correction Period--The time after Final 11. Construction Contract--The entire and Completion during which Contractor must correct, at no integrated written agreement between the OWNER and cost to OWNER, any Defective Work, normally one year Contractor concerning the Work. after the date of Final Completion or such longer period of time as may be prescribed by Laws or Regulations or 12. Construction Cost--The cost to OWNER of by the terms of any applicable special guarantee or those portions of the entire Project designed or specified specific provision of the Contract Documents. by CONSULTANT. Construction Cost does not include costs of services of CONSULTANT or other design 18. Defective--An adjective which, when modifying professionals and consultants, cost of land, rights-of-way, the word Work, refers to Work that is unsatisfactory, or compensation for damages to properties,or OWNER's faulty, or deficient, in that it does not conform to the costs for legal, accounting, insurance counseling or Contract Documents, or does not meet the requirements auditing services, or interest and financing charges of any inspection, reference standard, test, or approval incurred in connection with the Project, or the cost of referred to in the Contract Documents, or has been other services to be provided by others to OWNER damaged prior to CONSULTANT's recommendation of pursuant to Exhibit B of this Agreement. Construction final payment. Cost is one of the items comprising Total Project Costs. 19. Documents--Data, reports, Drawings, 13. (Modified) Contract Documents--Documents Specifications, Record Drawings, and other deliverables, that establish the rights and obligations of the parties whether in printed or electronic media format, provided engaged in construction and include the Construction or furnished in appropriate phases by CONSULTANT to Agreement between OWNER and Contractor and all OWNER pursuant to this Agreement. documents referenced therein, Addenda(which pertain to the Contract Documents), Contractor's Bid (including 20. Drawings--That part of the Contract Documents documentation accompanying the Bid and any post-Bid prepared or approved by CONSULTANT which documentation submitted prior to the notice of award) graphically shows the scope, extent, and character of the when attached as an exhibit to the Construction Work to be performed by Contractor. Shop Drawings are Agreement, the notice to proceed, the bonds, appropriate not Drawings as so defined. certifications, insurance documents the General Conditions, the Supplementary Conditions, the 21. Effective Date of the Construction Agreement-- Specifications and the Drawings as the same are more The date indicated in the Construction Agreement on specifically identified in the Construction Agreement, which it becomes effective, but if no such date is together with all Written Amendments, Change Orders, indicated, it means the date on which the Construction Work Change Directives, Field Orders, and Agreement is signed and delivered by the last of the two professional's written interpretations and clarifications parties to sign and deliver. issued on or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the reports 22. Effective Date of the Agreement--The date and drawings of subsurface and physical conditions are indicated in this Agreement on which it becomes not Contract Documents. effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by 14. Contract Price--The moneys payable by the last of the two parties to sign and deliver. OWNER to Contractor for completion of the Work in accordance with the Contract Documents and as stated in 23. Consultants--Individuals or entities having a the Construction Agreement. contract with CONSULTANT to furnish services with respect to this Project as CONSULTANT's independent 15. Contract Times--The numbers of days or the professional associates, consultants, subcontractors, or dates stated in the Construction Agreement to: (i)achieve vendors. The term CONSULTANT includes its Final Completion, and(ii)complete the Work so that it is Consultants. Standard Form of Agreement Between Owner and Architect for Professional Services Page 9 of 12 Addenda or Change Orders and other information which 24. Field Order--A written order issued by CONSULTANT considers significant based on record CONSULTANT which directs minor changes in the documents furnished by Contractor to CONSULTANT Work but which does not involve a change in the and which were annotated by Contractor to show changes Contract Price or the Contract Times. made during construction. 25. Final Completion shall mean that all work has 34. Reimbursable Expenses--The expenses incurred been completed, all final punch list items have been directly by CONSULTANT in connection with the inspected and satisfactorily completed, all payments to performing or furnishing of Basic and Additional subcontractors have been made, all documentation and Services for the Project for which OWNER shall pay warranties have been submitted, all closeout documents CONSULTANT as indicated in Exhibit C. have been executed and approved by the OWNER, and the Project has been finally accepted by the OWNER. 35. Resident Project Representative--The authorized representative of CONSULTANT, if any, 26. General Conditions-That part of the Contract assigned to assist CONSULTANT at the Site during the Documents which sets forth terms, conditions, and Construction Phase. The Resident Project Representative procedures that govern the Work to be performed or will be CONSULTANT's agent or employee and under furnished by Contractor with respect to the Project. CONSULTANT's supervision. As used herein, the term Resident Project Representative includes any assistants of 27. Hazardous Environmental Condition--The Resident Project Representative agreed to by OWNER. presence at the Site of Asbestos, PCB's, Petroleum, The duties and responsibilities of the Resident Project Hazardous Waste, or Radioactive Materials in such Representative are as set forth in Exhibit D. quantities or circumstances that may present a substantial danger to persons or property exposed thereto in 36. Samples--Physical examples of materials, connection with the Work. equipment, or workmanship that are representative of some portion of the Work and which establish the 28. Hazardous Waste--The term Hazardous Waste standards by which such portion of the Work will be shall have the meaning provided in Section 1004 of the judged. Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 37. Shop Drawings--All drawings, diagrams, illustrations, schedules, and other data or information 29. Laws and Regulations; Laws or Regulations-- which are specifically prepared or assembled by or for Any and all applicable laws, rules, regulations, Contractor and submitted by Contractor to ordinances, codes, standards, and orders of any and all CONSULTANT to illustrate some portion of the Work. governmental bodies, agencies, authorities, and courts having jurisdiction. 38. Site--Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which 30. PCB's--Polychlorinated biphenyls. the Work is to be performed,rights-of-way and easements for access thereto, and such other lands furnished by 31. Petroleum--Petroleum, including crude oil or OWNER which are designated for use of Contractor. any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 39. Specifications--That part of the Contract 14.7 pounds per square inch absolute), such as oil, Documents consisting of written technical descriptions of petroleum, fuel oil, oil sludge, oil refuse, gasoline, materials, equipment, systems, standards, and kerosene, and oil mixed with other non-Hazardous Waste workmanship as applied to the Work and certain and crude oils. administrative details applicable thereto. 32. Radioactive Materials--Source, special nuclear, 40. Substantial Completion--The time at which the or byproduct material as defined by the Atomic Energy Work (or a specified part thereof) has progressed to the Act of 1954 (42 USC Section 2011 et seq.) as amended point where, in the opinion of CONSULTANT,the Work from time to time. (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the 33. Record Drawings--The Drawings as issued for Work (or a specified part thereof) can be utilized for the construction on which the CONSULTANT, upon purposes for which it is intended. The terms completion of the Work, has shown changes due to "substantially complete"and"substantially completed"as Standard Form of Agreement Between Owner and Architect for Professional Services Page 10 of 12 applied to all or part of the Work refer to Substantial ARTICLE 8 - EXHIBITS AND SPECIAL Completion thereof. PROVISIONS 41. Supplementary Conditions--That part of the Contract Documents which amends or supplements the 8.01 Exhibits Included General Conditions. A. Exhibit A, "CONSULTANT's Services," consisting 42. (Modified) Total Project Costs--The sum of the of seven(7)pages. Construction Cost,allowances for contingencies,the total costs of services of CONSULTANT or other design B. Exhibit B. "OWNER's Responsibilities," consisting professionals and consultants, cost of land, rights-of-way, of two(2)pages. compensation for damages to properties,OWNER's costs for legal, accounting, insurance counseling or auditing C. Exhibit C, "Payments to CONSULTANT for services, interest and financing charges incurred in Services and Reimbursable Expenses," consisting of two (2) connection with the Project,and the cost of other services pages. to be provided by others to OWNER pursuant to Exhibit B of this Agreement. D. Exhibit D. "Duties, Responsibilities and Limitations of Authority of Resident Project Representative,"is not used. 43. Work--The entire completed construction or the various separately identifiable parts thereof required to be E. Exhibit E, "Notice of Acceptability of Work," is not provided under the Contract Documents with respect to used. this Project. Work includes and is the result of performing or furnishing labor, services, and F. Exhibit F."Construction Cost Limit,"is not used. documentation necessary to produce such construction and furnishing, installing, and incorporating all materials G. Exhibit G,"Insurance,"consisting of two(2)pages. and all equipment into such construction, all as required by the Contract Documents. H. Exhibit H."Dispute Resolution,"is not used. 44. Work Change Directive--A written directive to I. Exhibit I,"Allocation of Risks,"is not used. Contractor issued on or after the Effective Date of the Construction Agreement and signed by OWNER upon J. Exhibit J,"Special Provisions"is not used. recommendation of the CONSULTANT, ordering an addition, deletion, or revision in the Work, or responding K. (Added) Exhibit K, "Indemnification" consisting of to differing or unforeseen subsurface or physical two(2) pages. conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change 8.02 Total Agreement the Contract Price or the Contract Times but is evidence that the parties expect that the change directed or A. This Agreement (consisting of pages 1 to 12 documented by a Work Change Directive will be inclusive, together with the Exhibits identified above) incorporated in a subsequently issued Change Order constitutes the entire agreement between OWNER and following negotiations by the parties as to its effect, if CONSULTANT and supersedes all prior written or oral any,on the Contract Price or Contract Times. understandings. This Agreement may only be amended, supplemented, modified, or canceled by a duly executed 45. Written Amendment--A written amendment of written instrument. This Agreement along with the exhibits the Contract Documents signed by OWNER and shall be read and construed as the same Agreement. 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. Standard Form of Agreement Between Owner and Architect for Professional Services Page I 1 of 12 IN WITNESS WHEREOF,the parties hereto have executed this Agreement,the Effective Date of which is indicated on page 1. OWNER: CITY OF BAYTOWN CONSULTANT: SLATTERY TACKETT ARCIJITECTS,L.L.P. ROBERT IWR GERAL KETT,AIA Title: anager �.��' Title: General Partner O ; a� Date M: Date Signed:2I MAQ4 H 1412— Addre ct�it►iyga»os�6t' y Address for giving notices: S z; S� P.O.BOX 730 NORTH POST OAK ROAD,SUITE 200 BAYTOWN,TEXAS 77422-0424 HOUSTON,TEXAS 77024 Designated Representative(paragraph 6.02.A): Designated Representative(paragraph 6.02.A): JOSE A.PASTRANA, P.E. GERALD TACKETT AIA Title: Director of Engineering Title: Partner Phone Number: (281)420-7154 Phone Number:(713)521-0591 Facsimile Number: (281)420-6586 Facsimile Number: (713)682-2356 E-Mail Address: jose.pastrana@baytown.org E-Mail Address:gerald.tackett@slatterytackett.com Standard Form of Agreement Between Owner and Architect for Professional Services Page 12 of 12 4 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 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 Preliminary Design Phase A. CONSULTANT shall: l. 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 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, requirement of the Texas Accessibility Standards of the Architectural Barriers Act. CONSULTANT shall obtain approvals from such governmental authorities at the appropriate phase of services required herein. 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. (Added)Prepare and provide schematic design documents based on the mutually agreed upon program, schedule and estimated budget for the Cost of the Work. The documents shall establish the conceptual design of the Project and shall include conceptual floor plans,building elevations and site plan. 8. (Modified) Prepare a preliminary report (the "Report") which will, as appropriate, further refine the schematic design documents, 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 the estimated Page 1 of 7 pages (Exhibit A—Architect's Services) 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. 5. Furnish three (3) review copies of the Report to OWNER within fifty-six (56)days of authorization to begin services and review it with OWNER. 6. 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 Preliminary Design Phase will be considered complete on the date when the final copies of the revised Report have been delivered to and accepted by OWNER. A 1.02 Final Design Phase B. 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.8. 4. Perform or provide the following additional final Design Phase tasks or deliverables: 1. CONSULTANT will bring on design consultants such as mechanical, electrical and plumbing, and other required consultants to complete the balance of the work. 2. 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. 3. 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 Bidding/Construction Documents, which shall include Drawings and Specifications that establish in detail the quality levels of materials and project systems required for construction, for the OWNER's review and comment within one hundred twelve(1 12)calendar 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 Page 2 of 7 pages (Exhibit A—Architect's Services) 1 1 A 1.03 Bidding or Negotiating Phase A. After acceptance by OWNER of the Bidding Documents and the most recent opinion of probable Construction Cost as determined in the Final Design Phase, and upon written authorization by OWNER to proceed, CONSULTANT shall: 1. Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and, where applicable. 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. 6. (Added) Assist in connection with Bid protests, rebidding, or re-negotiating contracts for construction, materials,equipment,or services. B. (Modified) The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction Phase. A 1.04 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. Page 3 of 7 pages (Exhibit A—Architect's Services) 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. 5. Visits to Site and Observation of Construction. In connection with observations of Contractor's work in progress while it is in progress: a. (Modified) Make visits to the Site at intervals appropriate to the various stages of construction, appropriate to verify Contractor's payment requests, and as CONSULTANT and/or OWNER deems necessary, in order to observe as an experienced and qualified design professional the progress and quality of the Work. Such visits and observations by CONSULTANT, and the Resident Project Representative, if any, are not intended to be exhaustive or to extend to every aspect of Contractor's work in progress or to involve detailed inspections of Contractor's work in progress beyond the responsibilities specifically assigned to CONSULTANT in this Agreement and the Contract Documents, but rather are to be limited to spot checking, selective sampling, and similar methods of general observation of the Work based on CONSULTANT's exercise of professional judgment as assisted by the Resident Project Representative, if any. Based on information obtained during such visits and such observations,CONSULTANT will determine if Contractor's work is proceeding in accordance with the Contract Documents, and CONSULTANT shall keep OWNER informed of the progress of the Work. b. (Modified) The purpose of CONSULTANT's visits to, and representation by the Resident Project Representative, if any, at the Site, will be to enable CONSULTANT to better carry out the duties and responsibilities assigned to and undertaken by CONSULTANT during the Construction Phase, and, in addition, by the exercise of CONSULTANT's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed Work will substantially conform to the Contract Documents and that the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents has been implemented and preserved by Contractor. CONSULTANT shall not, during such visits or as a result of such observations of Contractor's work in progress, supervise, direct, or have control over Contractor's work, nor shall CONSULTANT have authority over or responsibility for the means, methods, techniques, sequences, or procedures of construction selected by Contractor, for safety precautions and programs incident to Contractor's work,or for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. Accordingly, CONSULTANT neither guarantees the performance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perform its work in accordance with the Contract Documents. 6. (Modified) Defective Work. Recommend to OWNER that Contractor's work be disapproved and rejected while it is in progress if, on the basis of such observations, CONSULTANT believes that such work will not produce a completed Project that substantially conforms to the Contract Documents or that it will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated in the Contract Documents. 7. Clarifications and Interpretations; 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. Page 4 of 7 pages (Exhibit A—Architect's Services) 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. Substitutes and "or-equal." Evaluate and determine the acceptability of substitute or "or-equal" materials and equipment proposed by Contractor, but subject to the provisions of paragraph A2.01 of this Exhibit A. 11. Inspections and Tests. Require such special inspections or tests of Contractor's work as deemed reasonably necessary, and receive and review all certificates of inspections, tests, and approvals required by Laws and Regulations or the Contract Documents. CONSULTANT's review of such certificates will be for the purpose of determining that the results certified indicate compliance with the Contract Documents and will not constitute an independent evaluation that the content or procedures of such inspections, tests, or approvals comply with the requirements of the Contract Documents. CONSULTANT shall be entitled to rely on the results of such tests. 12. (Modified)Disagreements between OWNER and Contractor. Render formal written decisions on all claims of OWNER and Contractor relating to the acceptability of Contractor's work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of Contractor's work. In rendering such decisions, CONSULTANT shall be fair and not show partiality to OWNER or Contractor. 13. Applications for Payment. Based on CONSULTANT's observations as an experienced and qualified design professional and on review of Applications for Payment and accompanying supporting documentation: a. Determine the amounts that CONSULTANT recommends Contractor be paid. Such recommendations of payment will be in writing and will constitute CONSULTANT's representation to OWNER, based on such observations and review, that, to the best of CONSULTANT's knowledge, information and belief, Contractor's work has progressed to the point indicated, the quality of such work is substantially in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents and to any other qualifications stated in the recommendation), and the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is CONSULTANT's responsibility to observe Contractor's work. In the case of unit price work, CONSULTANT's recommendations of payment will include final determinations of quantities and classifications of Contractor's work (subject to any subsequent adjustments allowed by the Contract Documents). The responsibilities of CONSULTANT contained in paragraph A 1.03.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 Page 5 of 7 pages (Exhibit A—Architect's Services) 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. 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. 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. Transmit these documents to OWNER within thirty days of receipt of documents from Contractor. d. (Added) Prepare and furnish to OWNER Record Drawings in hard copy, 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 Notice of Acceptability of the Work. Conduct a final inspection to determine if the completed Work of Contractor is acceptable so that CONSULTANT may recommend, in writing, final payment to Contractor. Accompanying the recommendation for final payment, CONSULTANT shall also provide a notice in the form attached hereto as Exhibit E(the"Notice of Acceptability of Work")that to the best of CONSULTANT's knowledge, information and belief and upon the exercise of CONSULTANT'S due diligence, the Work is acceptable and is in compliance with the Contract Documents. B. Duration of Construction Phase. The Construction Phase will commence with the execution of the first Construction Agreement for the Project or any part thereof and will terminate upon final payment to Contractors. 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 Page 6 of 7 pages (Exhibit A—Architect's Services) (7) 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 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 C U T l T for Professional Services dated Initial: OWNER CONSULTANT OWNER's Responsibilities Article 2 of the Agreement is amended and supplemented to include the following agreement of the parties. B2.01 In addition to other responsibilities of OWNER as set forth in this Agreement,OWNER shall: A. Provide CONSULTANT with all criteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility, and expandability,and any budgetary limitations;and furnish copies 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) H. (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 furnish services in regard to the Project, including, but not limited to, cost estimating, project peer review,value architectural,and constructability review. K. Furnish to CONSULTANT data as to OWNER's anticipated costs for services to be provided by others for OWNER so that CONSULTANT may make the necessary calculations to develop and periodically adjust CONSULTANT's opinion of Total Project Costs. L. (Modified) If OWNER designates a construction manager or an individual or entity other than, or in addition to,CONSULTANT to represent OWNER at the Site, define and set forth the duties, responsibilities, and limitations of authority of such other party and the relation thereof to the duties,responsibilities,and authority of CONSULTANT. M. Attend the pre-bid conference, bid opening, pre-construction conferences, construction progress and other job related meetings,and final payment inspections. N. Provide copies of daily observation reports prepared by OWNER's on-site representative, if any, 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 CONSUIfTANT for Professional Services dated Initial: OWNER CONSULTANT Payments to CONSULTANT for Services and Reimbursable Expenses Article 4 of the Agreement is amended and supplemented to include the following agreement of 4. Not Used. the parties: 5. The portion of the amount billed for ARTICLE 4 -- PAYMENTS TO THE CONSULTANT's services will be based upon CONSULTANT total services actually completed during the billing period, which shall be a calendar month. C4.01 For Basic Services Having A Determined Invoices shall be tendered no more often than Scope —Cost not to Exceed Method of once a month for all of the services performed Payment during the applicable month. A. OWNER shall pay CONSULTANT for Basic Services set forth in Exhibit A as follows: C4.02 For Basic Services Having An Undetermined Scope -- Direct Labor Costs Times a Factor 1. (Modified) A cost not to exceed Method of Payment amount of $180,400.00, based upon the rate schedule, which is attached as Appendix 1 of A. (Not Used). Exhibit C and incorporated herein for all intents and purposes. This amount does includes those C4.03 For Additional Services CONSULTANT'S consultant's charges and will be distributed at the completion of each phase in A. OWNER shall pay CONSULTANT for the following amount: Additional Services as follows: I. Preliminary Design Phase............$45,100.00 1. General. For services of 2. Final Design Phase.......................$81,180.00 CONSULTANT's employees engaged directly 3. Bidding/Negotiating Phase..........$ 9,020.00 on the Project pursuant to paragraph Part I of 4. Construction Phase......................$45,100.00 Exhibit A of the Agreement, except for services as a consultant, an amount based upon the actual 3.2. (Modified) CONSULTANT may with hours worked and the rate schedule, which is the consent of OWNER alter the distribution of attached as Appendix 1 of Exhibit C and compensation between individual phases noted incorporated herein for all intents and purposes herein to be consistent with services actually plus Reimbursable Expenses. Additional rendered, but shall not exceed the total cost not Services shall not exceed $0.00 without the prior to exceed amount unless approved in writing by written consent of the Owner. the OWNER. 2. (Not Used). 3. The cost not to exceed includes compensation for CONSULTANT's services and C4.04 For Reimbursable Expenses services of its Consultants, if any. Appropriate amounts have been incorporated in the cost not A. (Modified) When not included in to exceed to account for labor, overhead and compensation for Basic Services under paragraph profit. C4.01, OWNER shall pay CONSULTANT for Page 1 of 2 pages (Exhibit C- Basic Services With Determined Scope--Cost not to exceed Method) Reimbursable Expenses at the rate set forth in B. (Not Used). Appendix 2 of this Exhibit C. Before the OWNER shall be liable for any reimbursable expenses, the 4.07 Rate Schedule CONSULTANT must obtain prior written approval of the OWNER of any expense that exceeds$1000.00 A. (Not used) for which the CONSULTANT seeks reimbursement. Reimbursable Expenses shall not exceed a total of B. (Not used). $129000.00. C4.08 Other Provisions Concerning Payment B. (Modified) Reimbursable Expenses include the following categories: mileage, parking tolls, long A. Progress Payments. The portion of the distance, reproduction of Drawings, Specifications, amounts billed for CONSULTANT's services which Bidding Documents, and similar Project-related items are identified in paragraphs C4.01 and C4.03, will be in addition to those required under Exhibit A, and, if based on the Rate Schedule for the cumulative hours authorized in advance by OWNER. charged to the Project during the billing period by all of CONSULTANT's employees, plus Reimbursable C. The amounts payable to CONSULTANT for Expenses and CONSULTANT's Consultant's Reimbursable Expenses will be the Project-related charges, if any. 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 1.00. 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: Topographic Survey.............................$4,700.00 Geotechnical Investigation...................$4,200.00 Landscape Design.................................$8,500.00 Civil Engineering................................$20,350.00 Structural Engineering........................$19,000.00 MEP Engineering...............................$24,600.00 C4.06 Direct Labor Costs A. (Not Used). Page 2 of 2 pages (Exhibit C-All Other Services/Charges--Cost not to Exceed Method of Payment) 1 t I 1 APPENDIX 1 OF EXHIBIT C RATE SCHEDULE Employee Classification Maximum Hourly Rate Principal $125.00 Project Desi ner/Project Architect $90.00 Senior Technician $75.00 Technician $50.00 Clerical $45.00 Page 1 of I pages (Appendix 1 to Exhibit C Rate Schedule) APPENDIX 2 OF EXHIBIT C REIMBURSEMENT OF COSTS TAS plan review: Cost Reproduction and Deliveries:Cost 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 CQNSUI,TANT for Professional Services dated 1 1�- Initial: OWNER CONSULTANT Insurance Paragraph 6.05 of the Agreement is amended and supplemented to include the following agreement of the parties. G6.05 Insurance Throughout the term of this Agreement,the CONSULTANT at its own expense shall purchase,maintain and keep in force and effect insurance against claims for injuries to or death of persons or damages to property which may arise out of or result from the CONSULTANT's operations and/or performance of the work under this Agreement, whether such operations and/or performance be by the CONSULTANT, its agents, representatives, volunteers, employees or subcontractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable. The CONSULTANT's insurance coverage shall be primary insurance with respect to the OWNER, its officers, agents and employees. Any insurance or self-insurance maintained by the OWNER, its officials, agents and employees shall be considered in excess of the CONSULTANT's insurance and shall not contribute to it. Further, the CONSULTANT shall include all subcontractors as additional insureds under its commercial general liability policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated herein. The following is a list of standard insurance policies along with their respective minimum coverage amounts required in this contract: Commercial General Liability(CGL) General Aggregate: $1,000,000 Products&Completed Operations: $1,000,000 Personal&Advertising Injury: $1,000,000 Per Occurrence: $500,000 a. Coverage shall be at least as broad as ISO CG 00 01 10 93 b. No coverage shall be excluded from standard policy without notification of individual exclusions being attached for review and acceptance. Business Automobile Policy(BAP) Combined Single Limits: $1,000,000 a. Coverage for"Any Auto." Workers' Compensation Insurance Statutory Limits Employer's Liability$500,000 Waiver of Subrogation required Errors&Omissions(E&O) Limit: $1,000,000 Page 1 of 2 Pages (Exhibit G- Insurance) a 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 I I or better. b. Insurance carriers licensed and admitted to do business in State of Texas will be accepted. C. Liability policies will be on occurrence form. E&O can be on claims-made form. d. OWNER, its officers, agents and employees are to be added as Additional Insured to the commercial general liability and business automobile policies. e. Upon request of and without cost to OWNER,certified copies of all insurance policies and/or certificates of insurance shall be furnished to OWNER's representative. Certificates of insurance showing evidence of insurance coverage shall be provided to OWNER's representative prior to execution of this agreement. f. Upon request of and without cost to OWNER, loss runs(claims listing)of any and/or all insurance coverage shall be furnished to OWNER's representative. Page 2 of 2 pages (Exhibit G- Insurance) This is EXHIBIT K, consisting of 2 pages, referred to in and part of the Agreement between OWNER and YANT for Professional Services dated Initial: OWNER CONSULTANT 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)