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HomeMy WebLinkAbout2006-006ORDINANCE NO. 2006- ©O ip AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DENTON, TEXAS AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES BY AND BETWEEN THE CITY OF DENTON, TEXAS AND BIRKHOFF, HENDRICKS & CONWAY, L.L.P. FOR ENGINEERING SERVICES ASSOCIATED WITH THE REPAINTING AND REHABILITATION OF THE HIGH SCHOOL ELEVATED STORAGE TANK IN THE AMOUNT OF $99,610; PROVIDING FOR THE EXPENDITURE OF FUNDS THEREFOR; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City Council deems that it is in the public interest to engage the firm of Birkhoff, Hendricks & Conway, L.L.P. ("BHC"), of Dallas, Texas, to provide professional engineering services related to the repainting and rehabilitation of the High School Elevated Storage Tank; and WHEREAS, the City staff has reported to the City Council that there is a substantial need for the above -referenced professional engineering services, and that limited City staff cannot adequately perform the specialized services and tasks with its own personnel; and WHEREAS, Chapter 2254 of the Texas Government Code, known as the "Professional Services Procurement Act," generally provides that a City may not select a provider of professional services on the basis of competitive bids, but must select the provider on the basis of demonstrated competence, knowledge, and qualifications, and for a fair and reasonable price; NOW THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1: That the City Manager is hereby authorized by the City Council to execute a "Professional Services Agreement for Architect or Engineer" with Birkhoff, Hendricks & Conway, L.L.P., Dallas, Texas, for professional engineering services relating to the repainting and rehabilitation of the High School Elevated Storage Tank, for a professional fee of $99,610; in substantially the form of the Professional Services Agreement attached hereto and incorporated herewith by reference. SECTION 2: That the award of this Agreement by the City is on the basis of the demonstrated competence, knowledge, and qualifications of BHC and the demonstrated ability of BHC to perform the services needed by the City for a fair and reasonable price. SECTION 3: That the expenditure of funds as provided in the attached Professional Services Agreement is hereby authorized. 1 SECTION 4: That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this theJhd ATTEST: JENNIFER WALTERS, CITY SECRETARY By: APPROVED AS TO LEGAL FORM: EDWIN M. SNYDER, CITY ATTORNEY - day of ( , 2006. EULINE BROCK, MAYOR S:\Our Documents\Ordinances\05\BHC-Engrg PSA-HS Elevated Storage Tank-2006.doc PRIGINL PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the 3 r day of 20_Cl(,_, by and between the City of Denton, Texas, a Texas municipal c rporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Birkhoff, Hendricks & Conway, L.L.P., with its corporate office at 7502 Greenville Avenue, Suite 220, Dallas, , Texas 75231 hereinafter called "Design Professional," acting herein, by and through their duly authorized representatives. In consideration of the covenants and agreements herein contained, the parties hereto do mutually agree as follows: SECTION 1 EMPLOYMENT OF DESIGN PROFESSIONAL The Owner hereby contracts with the Design Professional, a licensed Texas engineer, as an independent contractor. The Design Professional hereby agrees to perform the services as described herein and in the Proposal, the General Conditions, and other attachments to this Agreement that are referenced in Section 3, in connection with the Project. The Project shall include, without limitation, the scope of work outlined in the letter proposal from Birkhoff, Hendricks & Conway, L.L.P. to Mr. Timothy S. Fisher, P.E., Assistant Director of Water Utilities of the City of Denton, dated November 29, 2005, attached hereto and labeled Exhibit "A" SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: Basic Engineering Services: Payment for the basic services described in the letter proposal to Mr. Tim Fisher, dated November 29, 2005 , shall be on a Lump Sum Basis in the following Amounts: Part I - Design Phase: ............................................................................ $40,600 Total Amount, Basic Services (Parts I):..............$40,600 Additional Services: For the Services described in the letter proposal to Mr. Tim Fisher, dated November 29, 2005, Part II Bidding Phase, Part III Construction Phase and Part IV Additional Services, we propose to be compensated on a salary cost basis times a multiplier of 2.30, with expenses at actual invoice cost times 1.10. with the exception of invoices from Page 1 of 3 L:\6160 Contract Development\Dentonliigh school EST Repaint\Design Professional AgreementAm Revised 5-30-02 Kleinfelder which shall be billed at actual cost. Automobile mileage for special services will be invoiced at $0.50 per mile. We suggest you budget approximately $59,010 in the following amounts for our services on this project: Part II — Bidding Phase........................................................................$1,750 Part III — Construction Phase..............................................................$8,750 Part W — Additional Services Tank Inspection Report (Kleinfelder)............................................. $6,000 Tank Blast and Coating Observations(Kleinfelder).........................$41,310 Printing of Final Plans and Specifications ...................................... 1 200 Total Amount (Parts II — IV): ................................ $59,010 Payments are to be made on a monthly based on the percent complete of the design or construction phase for the Basic Services, and based on the actual hourly expenditures for the Special Services. The maximum overall fee established herein shall not be exceeded without written authorization from the City, based on increased scope of services. Invoices will be prepared and submitted on a monthly basis and shall itemize personnel, hourly rates and expenditures. Page 2 of 3 LA6160 Contract Development\DentonWigh School EST Repaint0esign Professional Agnxment.doc Revised 5-30-02 SECTION 3 ENTIRE AGREEMENT This Agreement includes this executed agreement and the following documents all of which are attached hereto and made a part hereof by reference as if fully set forth herein: City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. The Design Professional's Letter Proposal to Mr. Tim Fisher, P.E. dated November 29, 2005. This Agreement is signed by the parties hereto effective as of the date first above written. CITY OF DENTON BY: �. HOWARD MARTIN INTERIM CITY MANAGER ?.w;. V_) PARTNER WITNES BY: PAUL CARLINE, P.E. Page 3 of 3 LA6160 Contras Development\Denton\High School EST Repaint\Design Professional Agreement.doc Revised 5-30-02 BIRKHOFF, HENDRICKS & CONWAY, L.L.P. CONSULTING ENGINEERS 7502 Greenville Ave., #220 Dallas, Texas 75231 JOHN W. nIRKHOFT, P.E. RONALD V. CONWAY, P.E. GARY C. HENDRICKS, P.G. JOE R. CARTER, P.E. PALE A. CARLINE, P.E. MATT HICKEY, P.E. DOUGLAS K. SHOWERS, P.E. Mr. Timothy S. Fisher, P.E. Assistant Director of Water Utilities City of Denton 901 A Texas Street Denton, Texas 76201 Re: Professional Services Letter Proposal (Revised) High School Elevated Storage Tank Repaint Dear Mr. Fisher: Fax (214) 361-0204 Phone (214) 361-7900 November 29, 2005 As you requested, we are pleased to submit this revised proposal for engineering services for preparation of plans, specifications, bidding and construction administrations services for the repainting both the interior and exterior of the City of Denton's High School Elevated Storage Tank. We understand the tank is located off Riney Road near the intersection with U.S. Hwy 77 (Elm Street). We are enclosing a map to demonstrate our understanding of the project location. PROJECT UNDERSTANDING The High School tank is a 2 million gallon capacity, 14-legged welded steel tank constructed in 1969 by PDM. You have explained to us the tank's exterior surface was over -coated in 1979 and the original coating system is believed to have a red lead primer. The interior surface was blasted to bare metal in 1990 as was coated with an epoxy system. Prior to any detailed design or preparation of specifications, we recommend a comprehensive inspection of the tank and it's coating system. This inspection will assists us in determining what, if any, repairs are required on the structure, identify any modifications required to meet current TCEQ standards, and identify the type and condition of the existing coating system. Both the interior and exterior coating systems are to be completely removed to bare metal and the surface prepared for a new coating system. As many factors and options are available for re -coating this tank, the exact type and nature of the new coating system will be determined during the design phase of the project. You have further explained the interior roof rafters may be in poor shape and the cathodic protection system will likely require replacement. We understand the original paint color scheme may be re -implemented, or the City may choose to abandon the existing color scheme and install a modified City logo instead. Alternate bids will be received for each option. r�6160 con[mc[ dcvdopmcmWwtonWigh school ui ¢painplrncr pmposai(¢vkcd 11-29-05)Aoc Mr. Timothy S. Fisher, P.E. Assistant Director of Water Utilities, City of Denton High School Elevated Storage Tank Repaint Engineering Services Letter Proposal (Revised 11/29/05) November 29, 2005 Page 2 of 6 OPINION OF PROBABLE COST Based on our understanding the project scope and our experience with other similar projects, our opinion of probable construction cost for repainting and rehabilitation of the 2.0 MG High School Elevated Storage Tank is in the range of $620,000. We are enclosing a copy of our itemized opinion of cost for your review. SCOPE OF OUR ENGINEERING SERVICES: Based on our discussions with you, we propose the scope of services as outlined in Exhibit "A" attached hereto and made a part of this proposal PROJECT SCHEDULE The Engineer agrees to commence services immediately upon execution of the Agreement, and to proceed diligently with said service to completion as described in the Completion Schedule attached hereto as Exhibit "B" and thereby made a part of the Agreement. COMPENSATION AND METHOD OF PAYMENT We propose to be compensated for all services provided pursuant to this Agreement in the amount and manner described and set forth in the Payment Schedule attached hereto as Exhibit "C" and thereby made a part of this Agreement. City agrees to pay invoices upon receipt. We are enclosing two sets of the City of Denton's Standard Profession Services Agreement along with the City of Denton General Conditions To Agreement for Architectural or Engineering Services. If you are in agreement with this proposal, please sign and return one original of the City of Denton's Standard Professional Services Agreement back to this office. We very much appreciate the opportunity to continue our good working relationship with you and your staff. We are available to discuss this proposal further at your convenience. Sincerely yours, Gary C. Hendricks, P.E. Enclosures Mr. Timothy S. Fisher, P.E. Assistant Director of Water Utilities, City of Denton High School Elevated Storage Tank Repaint Engineering Services Letter Proposal (Revised 11/29/05) November 29, 2005 Page 3 of 6 EXHIBIT "A" ENGINEERING SERVICES High School Elevated Storage Tank - Repaint Part I: Design Phase Preparing specifications and bid documents for repainting of the interior and exterior of the 2,000,000-gallon High School Elevated Storage Tank. A project location map is included at the end of this Exhibit "A". The design phase services include: A. Construction Plan Sheets prepared at a scale of not less than 1` 40' B. Standard Details and Special Details, including 1) Design of an interior tank bowl mixing system 2) Layout of Original Tank Paint Scheme 3) Alternate Layout of new paint scheme with City of Denton Logo C. Cover Sheet, Location Map and Sheet Index D. Submittals to State Regulatory Agencies, as required E. Design review meetings F. Opinion of Probable Construction Estimate G. Preparation of Specifications and Contract Documents with the inclusion of the High School Elevated Storage Tank Shop Drawings (if available from the City of Denton) and the proposed tank inspection report to be prepared by Kleinfelder (In Part) in the bidding documents. H. Printing of preliminary plans and specifications for review by the City. Part IL• Bidding Phase A. Assist the City staff in advertising for bids. This will include preparing and e-mailing "Notice to Contractors" to contractors, suppliers, and subcontractors experienced in this type of work and publishers. City will have Notice published in local newspaper. B. Sell bidding documents to potential bidders and their suppliers and other parties. C. Provide bidding documents to City of Denton, Dodge Reports and two other parties requested by the City. D. Assist during opening of bids and provide bidding tally sheets. E. Provide bid tabulation to City and contractors who submitted bids. F. Obtain the following information from the lowest bidder: 1) Past work history including references from recently completed similar projects, 2) Physical resources to produce the project 3) Financial capability G. Formulate opinion from information received and provide the City a summary of the opinion for their use in selection and award of the construction contract. H. After award of contract, furnish ten sets of prints of the final plans, specifications and contract documents to the City for construction use by the City and Contractor. Mr. Timothy S. Fisher, P.E. Assistant Director of Water Utilities, City of Denton High School Elevated Storage Tank Repaint Engineering Services Letter Proposal (Revised 11/29/05) November 29, 2005 Page 4 of 6 Part III: Construction Phase A. Attend the pre -construction conference, including preparing an agenda for the meeting. B. Prepare and publish "Notice to Proceed" to the contractor C. Attend 3 construction meetings with contractor, quality control personnel, and City representatives to discuss strategy, problem areas, progress, and any required coordination. D. Review shop drawings and other submittal information which the Contractor submits. This review is for the benefit of the Owner and covers only general conformance with information given by the Contract Documents. The contractor is to review and stamp their approval on submittals prior to submitting to the Engineer. Review by the Engineer does not relieve the Contractor of any responsibilities, safety measures or the necessity to construct a complete and workable facility in accordance with the Contract Documents. E. Provide written responses to requests for information or clarification to City or Contractor. F. Prepare and process routine change orders for this project as they pertain to the original scope of work. G. Prepare monthly pay request from information obtained in the field. H. Accompany the City during their final inspection of the project. 1. Recommend final acceptance of work based on information from the on -site representative. Part IV: Additional Services A. Preparation of the Tank Inspection Report and recommendations. This work will be performed through a sub -consultant contract with Kleinfelder, 2035 Central Circle, Suite 108, McKinney, Texas 75069. A copy of the sub -consultant agreement is attached as Exhibit D. B. Provide Abrasive Blast and Coating Observations. This work will be performed through a sub - consultant contract with Kleinfelder, 2035 Central Circle, Suite 108, McKinney, Texas 75069. A copy of the sub -consultant agreement is attached as Exhibit E. C. Printing of final plans and specifications for distribution to prospective bidders and the successful contractor Part V: Exclusions The intent of this scope of services is to include only the services specifically listed herein and none others. Services specifically excluded from this scope of services include, but are not necessarily limited to the following: A. Environmental impact statements and assessments. B. Fees for permits or advertising. C. Environmental cleanup. D. Landscape architecture. E. Flood plain reclamation plans. F. Trench safety designs. G. Services in connection with condemnation hearings. H. Phasing of Contractor's work. I. On -site safety precautions, programs and responsibility. J. Consulting services by others not included in proposal. K. Revisions and/or change orders as a result of revisions after completion of original design (unless to correct error on plans). Mr. Timothy S. Fisher, P.E. Assistant Director of Water Utilities, City of Denton High School Elevated Storage Tank Repaint Engineering Services Letter Proposal (Revised 11/29/05) November 29, 2005 Page 5 of 6 EXHIBIT "B" COMPLETION SCHEDULE Notice to Proceed................................................................. At Direction of City Submit Tank Inspection Report to City ................................. Six (6) Weeks Submit Preliminary Plans to City for Review Complete Final Plans Advertise Project Bid Opening ............... .... Four (4) Weeks after Inspection Report ................ 2 weeks after City's initial review ... At the Direction of the City ... Min. Two Weeks after Advertisement Contract Award.................................................................... At City's Direction Notice to Proceed to Contractor .. Two (2) Weeks after Award Project Complete................................................................... 150 Calendar Days Mr. Timothy S. Fisher, Y.E. Assistant Director of Water Utilities, City of Denton High School Elevated Storage Tank Repaint Engineering Services Letter Proposal (Revised 11/29/05) November 29, 2005 Page 6 of 6 EXHIBIT "C" PAYMENT SCHEDULE Payment for the basic services described under Parts 1, 11, and III, shall be on a Lump Sum Basis in the following Amounts: Part I - Design Phase: ...................................................................................... $40,600 Total Amount, Basic Services (Part I) :.......................$40,600 For the Part II Bidding Phase, Part Ill Construction Administration Phase and the Part IV Additional Services, we propose to be compensated on a salary cost basis times a multiplier of 2.30, with expenses at actual invoice cost times 1.10, except for the Kleinfelder Invoices which shall be billed at actual invoice amount. Automobile mileage for special services will be invoiced at $0.50 per mile. We suggest you budget approximately $59,010 in the following amounts for our services on this project: Part II — Bidding Phase....................................................................................... $1,750 Part III — Construction Phase Part IV — Additional Services ...... $ 8,750 Tank Inspection Report (Kleinfelder).............................................................. $6,000 Tank Blast and Coating Observations (Klein£elder).........................................$41,310 Printing of Final Plans and Specifications...................................................... $1,200 Total Amount, Additional Services (Parts II - IV): ...................................... $59,010 Payments are to be made on a monthly based on the percent complete of the design or construction phase for the Basic Services, and based on the actual hourly expenditures for the Special Services. The maximum overall fee established herein shall not be exceeded without written authorization from the City, based on increased scope of services. ban ., s r"ri C fID ML p t F-1 +tl. I �t�9 NA] CS9 f"nF9 �J. CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE]. ARCHITECT OR ENGINEER'S RESPONSIBILITIES 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreement') and proposal (the "Proposal') to which these General Conditions arc attached) performed by the Architect or Engineer (hereinafter called the "Design Professional') or Design Professional's erriployees and consultants as enumerated in Articles 2 and 3 of these General Conditions as modified by the Agreement and Proposal (the "Services'). 1.2 The Design Professional will perform all Services as an independent contractor to the prevailing professional standards consistent with the level of cart and skill ordinarily exercised by members of the same profession currently practicing in the same locality under similar conditions, including reasonable, informed judgments and prompt timely actions (the "Degree of Care'). The Services shall be perfumed as expeditiously as is consistent with the Degree of Care necessary, for the orderly progress of the Project. Upon request of the Owner, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Services which may be adjusted as the Project proceeds, and shall include allowances for periods of time required for the Owners review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or Owner, and any adjustments to this schedule shall be mutually acceptable to both parties. ARTICLE 2 SCOPE OF BASIC SERVICES 2.1 BASIC SERVICES DEFINED The Design Professional's Basic Services consist of those described in Suctions 2.2 through 2.6 of these General Conditions and include without limitation normal structural, civil, mechanical and electrical engineering services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, m described by and required in Section 2.4. The Basic Services may be modified by the Agreement 2.2 SCHEMATIC DESIGN PHASE 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Prjject to ascertain Owners needs and 10 establish the requirements for the Project. 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owners program, construction schedule and concoction budget requirements, each in IQTrIs of the other, subject to the limitations set forth in Subsection 5.2.1. 2.23 The Design Professional shall review with the Owner alternative approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed -upon program, schedule and construction budget requirements, the Design Professional shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.2.5 The Design Professional shall submit to the Owner a preliminary detailed estimate of Construction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 23 DESIGN DEVELOPMENT PHASE 23.1 Based on the approved Schematic Design DocumarLs and any adjustments authorized by the Owner in the program, schedule or construction budget, the Design Professional shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and descnbe the sin and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. Notwithstanding Owner's approval of the documents, Design Professional represents that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project. 23.2 The Design Professional shall advise the Owner of my adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 2.2.5. 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Baud on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Design Professional shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in derail requirements for the constructieo of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations. 2.4.2 The Design Professional shall assist the Owner in the preparation of the necessary bidding or procurtmrenl information, bidding or procurement foms, the Conditions of the contract, and the form of Agreement between the Owner and contractor. 2.43 The Design Professional shall advise the Owner ofany adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. 2.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities havingjuHsdiction over the Project. 2.5 CONSTUCTION CONTRACT PROCUREMENT Page 1 of L:\6160 Contract Development\Denton\EST Site Evaluation\Dentun Standard Agreement Forms\GENERALCONDITIONS-ARCHITECT-ENGINEER.doc Revised 5-30-02 24LI The Design Professional, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in procuring a construction contract for the Project through any procurement method that is legally applicable to the Project including without limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the concoction contract is in the sole discretion of the Owner. 25.2 If the construction contract amount for the Project exceeds the total constuetion cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, then the Design Professional, at its sole cost and expense, will revise the Construction Documents as may be required by the Owner to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs. 2.6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2.6.1 The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commrnCCs with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subsection 8.3.2. 242 The Design Professional shall provide detailed administration of the Contract for Concoction as set forth below. For design professionals the administration shall also be in accordance with AIA document A201, General Conditions of the Contract for Construction, current as of the date of the Agreement as may be amended by the City of Denton special conditions, unless otherwise provided in the Agreement For engineers the administration shall also be in accordance with the Standard Specifications for Public Works Concoction by the North Central Texas Council ofGovemments. current as of the date of the Agreement, unless otherwise provided in the Agreement. 2.63 Construction Phase duties, responsibilities and limitations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6.4 The Design Professional shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the corection, or warranty period described in the Contract for Construction. The Design Professional shall have authority to act on behalf of the Owner only to the extent provided in the Agreement and Ihcse General Conditions, unless otherwise modified by written instrument- 2.6.5 The Design Professional shall observe the construction site at least one time a week, while concoction is in progress, and as reasonably necessary while construction is not in progress, to become familiar with the progress and quality of the work completed and to determine if the work is being perfomxd in a manner indicating that the work when completed will be in accordance with the Contract Documents. Design Professional shall provide Owner a written report subsequent to each on -site visit On the basis of onsite observations the Design Professional shall keep the Owner informed of the progress and quality of the work, and shall exercise the Degree of Care and diligence in discovering and promptly reporting to the Owner any observable defects or deficiencies in the work of Contractor a any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the AgcemenL The Design Professional shall promptly correct any defective designs or specifications fumished by the Design Professional at no cost to the Owner. The Owners approval, acceptance, use of or payment for all or any part of the Design Professional's Services hereunder or of the Project itself shall in no way alter the Design Professional's obligations or the Owners rights hereunder. 2.6.6 The Design Professional shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work. The Design Professional shall not be responsible for the Contractor's schedules or failure to tarty out the work in accordance with the Contract Documents except insofar as such failure may result from Design Professional's negligent acts or omissions. The Design Professional shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the work. 2.6.7 The Design Professional shall at all times have access to the work wherever it is in preparation or progress 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Communications by and with the Design Professional's consultants shall be through the Design Professional. 2.6.9 Based on the Design Professional's observations at the site of the work and evaluations of the Contractors Applications for Payment, the Design Professional shall review and certify the amounts due the Contractor. 2.6.10 The Design Professional's certification for payment shall constitute a representation to the Owner, based on the Design Professional's observations at the site as provided in Subsection 2.6.5 and on the data comprising the Contractors Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to minor deviations from the Contract Documents cor- rectable prior to completion and to specific qualifications expressed by the Design Professional. The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is cr rltled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional has (1) reviewed construction means, methods, techniques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 2.6.11 The Design Professional shall have the responsibility and authority to reject work which does not conform to the Contract Documents. Whenever the Design Professional considers it necessary or advisable for implementation of the intent of the Contract Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the previsions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Design Professional nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Design Professional to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons pMorming portions of the work. 2.6.12 The Design Professional shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining compliance with applicable laws, situates, ordinances and codes; and (2) determining whether or not the work, when completed, will be in compliance with the requirements of the Contract Documents. The Design Professional shall act with such reasonable promptness to cause no delay in the work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Design Professional's professional judgment to pernitadequatemview. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the Page 2 of 8 L:\6160 Contract Development\Denton\EST Site Evaluation\Denton Standard Agreement Forms\GENERAL CONDITIONS-ARCHITECT-ENGINEER.dm Revised 5-30-02 responsibility of the Contractor to the extent required by the Contract Documents. The Design Professional's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Design Professional, of concoction means, methods, techniques, sequences or procedures. The Design Professional's approval of a specific item shall not indicate approval of an assemblyofwhich the item is a component. Wbmprofessionalcertificationofperformaneechamcteristics of materials, systems or equipment is required by the Contract Documents, the Design Professional shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documens. 2.6.13 The Design Professional shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Design Professional as provided in Subsections 3.1.1 and 3.3.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contact Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and if requested by the Owner shall issue Certificates of Substantial and Final Completion. The Design Professional will receive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Design Professional shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Design Professional's response to such requests shall be made with reasonable promptness and within any time limits agreed upon. 2.6.16 Interpretations and decisions of the Design Professional shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so tendered in good faith in accordance with all the provisions of this Agreement and in the absence of negligence. 2.6.17 The Design Professional shall render written decisions within a reasonable tree on all claims. disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the work as provided in the Contract Documents. 2.6.18 The Design Professional (1) shall render services under the Agreement in accordance with the Degree of Care; (2) will reimburse the Owner for all damages caused by the defective designs the Design Professional prepares; and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or diminish any of the Design Professional's obligations thereunder. 2.6.19 The Design Professional shall provide the Owner with four sets of reproducible prints showing all significant changes to the Concoction Documents during the Concoction Phase. ARTICLE 3 ADDITIONAL SERVICES 3.1 GENERAL 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in the Agreement or Proposal, and they shall be paid for by the Owner as provided in the Agreement, in addition to the compensation for Basic Services. The services described under Sections 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Section 3.3 are required due to circumstances beyond the Design Professional's control, the Design Professional shall notify the Owner in writing and shall not commence such additional services until it receives written approval from the Owner to proceed. If the Owner indicates in writing that all or par Of Such Contingent Additional Services arc not required, the Design Professional shall have no obligation to provide those services. Owner will be responsible for compensating the Design Professional for Contingent Additional Services only if they arc not required due to the negligence or fault of Design Professional. 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3.2.1 If more extensive representation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Project Representatives to assist in carrying out such additional on -site responsibilities. 3.2.2 Project Representatives shall be selected, employed and directed by the Design Professional, and the Design Professional shall be compensated therefore as agreed by the Owner and Design Professional. 33 CONTINGENT ADDITIONAL SERVICES 33.1 Making material revisions in Drawings, Specifications or other documents when such revisions are: I. inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; 2. required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3. due to changes required as a result of the Owners failure to tender decision in a timely manner. 33.2 Providing sett ices required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Owner's schedule, except for services required under Subsection 2.5.2. 333 Preparing Drawings, Specifications and other documentation and supporting dam, and providing other services in connection with Change Orders and Construction Change Directives. Page 3 of 8 L:\6160CannctDevelopmnt\Dcnton\EST Site Evaluatlon\Denton Standard Agreement Forms\GENERALCONDITIONS-ARCHITECT-ENGINEER.doc Revised 5-30-02 33.4 Providing consultation concerning replacement of work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such work. 33.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 33.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work. 33.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Design Professional is parry thereto. 33.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase, 33.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent act or omission of the Design Professional shall be performed by the Design Professional as a part of the Basic Smices under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.3.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3.4.1 Providing financial feasibility or other special studies. 3.4.2 Providing planning surveys, site evaluations or comparative studies ofprospective sites. _ 3.43 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 3A.4 Providing services relative to future facilities, systems and equipment. 3.45 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 3.4.6 Providingservices to venfy, the accuracy of drawings or other information famished by the Owner. 3.4.7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner. 3.48 Providing detailed quantity surveys or inventories of material, equipment and labor. 3.4.9 Providinganalysesofoperatingandmainlenancecmts. 3.4.10 Making investigations, inventories ofmaterials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, prepam6m of operationand maintenance manuals, training personnel for operation and maintenance and consultation during operation. 3A.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of fumilure, furnishings and related equipment. 3.4.14 Providing services other than as provided in Section 2.6.4, alter issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 3.4.15 Providing services ofconsultants for other than architectural, civil, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 3.4.16 Providing any other services not otherwise included in this Agreement or not customarily famished in accordance with generally accepted architectural practice. 3.4.17 Preparing awl ofreproducible record drawings in addition to those required by Subsection 2.6,19, showing significant changes in the work made during con- sauclion based on marked -up prints, drawings and other dam famished by the Contractor to the Design Professional. 3.4.18 Notwithstanding anything conained in the Agreement, Proposal or these General Conditions to the contrary, all services described in this Article 3 that are caused or necessitated in whole or in part due to the negligent actor omission of the Design Professional shall be performed by the Design Professional as apart of the Basic Services under the Agreement with no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The intervening or concurrent negligence of the Owner shall not limit the Design Professional's obligations under this Subsection 3.4.18. ARTICLE OWNER'S RESPONSIBILITIES 4.1 The Owner shall consult with the Design Professional regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site mquircments, as more specifically described in Subsection 2.2.1. Page 4 of 8 L:\6160 Contract Development\Denton\EST Site Evaluation\Denton Standard Agreement Forms\GENERAL CONDITIONS-ARCHITECT-LNGINEER.doc Revised 5-30-02 4.2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of there costs. 43 If requested by the Design Professional, the Owner shall famish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4A The Owner shall designate a representative authorized to act on the Owners behalf with respect to the ProjecL Tlx Owner or such authorized representative shall tender decisions in a timely manner pertaining to documents submitted by the Design Professional in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional's services. 4.5 Where applicable, the Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information conceming available utility services and lines, both public and private, above and below grade, including inverts and depths. All the infonretion on the survey shall be referenced to a project benchmark. 4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when such services are requested by the Design Professional. Such services may include but are not limited to test borings, test pits, determinations of soil beating values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tuts, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall furnish the services of other consultants when such services arc reasonably required by the scope of the Pmject and are requested by the Design Professional and are not retained by the Design Professional as part of its Basic Services or Additional Services. 4.7 When not a part of the Additional Services, the Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tuts of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Dmcummts. 4b The Owner shall famish all legal, accounting and insurance counseling services as may be necessary al any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner. 4.9 The services, information, surveys and reports required by Owner under Sections 4.5 through 4.8 shall be furnished at the Owner's expense, and the Design Professional shall be entitled to rely upon the accuracy and cornpleleness thereof in the absence of any negligence on the part of the Design Professional. 4.10 The Owner shall give prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the project or nonconformance with the Contract Documents. 4.11 Design Professional shall propose language for certificates or certifications to be requested of the Design Professional or Design Professional's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge or services beyond the scope of the Agreement. ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Concoction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Design Professional. 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contructor's overhead and profit. In addition, a reasonable allowance for con- tingencies shall be included for market conditions at the time of bidding and for changes in the work during construction. 5.13 Construction Cost does not include the compensation of the Design Professional and Design Professional's consultants, the costs of the land, rights -of -way, financing or other costs which are the responsibility of the Owner as provided in Article 4. 5.2 RESPONSIBILITY FOR CONSTRUCTION COST 5.2.1 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's bestiudgment a; a design professional familiar with the construction industry. It is recognized, however, that neither the Design Professional nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions. Accordingly, the Design Professional cannot and does not warrant or represent that bids or cost proposals will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Design Professional. 5.2.2 No fixed limit of Construction Cost shall be established as a condition of the Agreement by the furnishing, proposal or establishment of Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fixed limit has been established, the Design Professional shall be permitred to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed limit Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Constmaton. 5.23 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. Page 5 of 8 L:\6160 Contract Dcvclopment\Dcnton\EST Site Evaluation\Denton Standard Agreement Forms\GENERAL CONDITIONS-ARCHITECT-ENGINEER.doe Revised 5-30-02 ARTICLE OWNERSHIP AND USE OF DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared by the Design Professional for this Project are instruments of the Design Professional's service and shall become the property of the Owner upon termination or completion of the Agreement. The Design Professional is entitled to retain copies of all such documents. Such documents are intended only be applicable to this Project, and Owner's use of such documents in other projects shall be at Owner's sole risk and expense. In the event the Owner uses any of the information or materials developed pursuant to the Agreement in another project or for other purposes than am specified in the Agreement, the Design Professional is released from any and all liability relating to their use in thatproject 6.2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the Design Professional's reserved rights. ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7.1 The Design Professional may terminate the Agreement upon not less than thirty days written notice should the Owner fail substantially to perform in accordance with the temps of the Agreement through no fault of the Design Professional. Owner may terminate the Agreement or any phase thereof with or without cause upon thirty (30) days prior written notice to the Design Professional. All work and labor being performed under the Agreement shall cease immediately upon Design Professional's receipt of such notice. Before the end of the thirty (30) day period, Design Professional shall invoice the Owner for all work it satisfactorily performed prior to the receipt of such notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form. Should Owner subsequently contract with anew Design Professional for continuation of services on the Project, Design Professional shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Design Professional shall be compensated for services satisfactorily performed prior to notice of such suspension. When the Project is resumed, the Design Professional's compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Design Professional's services. 73 The Agreement may be terminated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently abandoned. If the Project is abandoned by the Owner for more than 90 consecutive days, the Design Professional or the Owner may terminate the Agreement by giving written notice. 7.4 Failure of the Owner to make payments to the Design Professional for work satisfactorily completed in accordance with the Agreement shall be considered substantial non- performance and cause for termination. 7.5 if the Owner fails to make payment to Design Professional within thirty (30) days of receipt of a statement for services properly and satisfactorily performed, the Design Professional may, upon seven days written notice to the Owner, suspend performance of services under the Agreement 7.6 In the event of termination not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to termination. ARTICLES PAYMENTS TO THE DESIGN PROFESSIONAL 8.1 DIRECT PERSONNEL EXPENSE 9.1.1 Direct Personnel Expense is defined w the direct salaries of the Design Professional's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave. holidays, vacations, pensions and similar contributions and benefits. 8.2 REIMBURSABLE EXPENSES 8.2.1 Reimbursable Expenses arc in addition to compensation for Basic and Additional Services and include expenses incurred by the Design Professional and Design Professional's employees and consultants in the interest of the Project, as identified in the following Clauses. 8.2.1.1 Expense of transportation in connection with the Picimi; expenses in connection with authorized outof-sown travel; long-distance communications; and fees paid for securing approval of authorities havingjurisdiction over the Project. 8.2 1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and o0rerdocurrents. 8.2.13 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 8.7.I5 Expense ofcomputer-aided design and draftingequipment pre whenused in connection with the Project. 8.2.1.E Other expenses dial are approved in advance in writing by the Owner. 83 PA]TIENTS ON ACCOUNT OF BASIC SERVICES 83.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within cach phase of service, on the basis set forth in Section 2 of the Agreement and the schedule of work. 83.2 If and to the extent that the time initially established in the Agreement is exceeded or extended through no fault of the Design Professional, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Section 2 of the Agreement. Page 6 of 8 L%6160 Contract Development\Dcmon\EST Site Evaluation\Denton Standard Agreement Forms\GENERAL CONDITIONS-ARCHITECT-ENGiNEER.doc Revised 5-30-02 833 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Section 2 of the Agreement based an (1) the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project. 8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 8.4.1 Payments on account of the Design Professional's Additional Services and for Reimbursable Expenses shall be made monthly within 30 days after the presentation to the Owner of the Design Pmfessional's statement of services rendered or expenses incurred. 85 PAYMENTS WITHHELD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments to contactors, or on account of the cost of changes in the work other than those for which the Design Professional is responsible. 8.6 DESIGN PROFESSIONAL'S ACCOUNTING RECORDS Design Professional shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining w Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 9 INDEMNITY 9.1 The Design Professional shall indemnify and save and hold harmless the Owner and its officers, agents, and employees from and against any and all liability, claims, demands, damages, losses, and expenses, including, but not limited to court costs and reasonable amomey fees incurred by the Owner, and including, without limitation, damages for bodily and personal injury, death and property damage, resulting from the negligent acts or omissions of the Design Professional or its officers, shareholders, agents, or employees in the performance of the Agreement. 9.2 Nothing herein shall he construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any of the parries' defenses, both at law or equity, to any claim, cause of action, or litigation filed by anyone not a party to the Agreement, including the defense of govemmental immunity, which defenses are hereby expressly reserved. ARTICLE 10 INSURANCE During the performance of the Services under the Agreement, Design Professional shall maintain the following insurance with an insurance company licensed or authorized to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carvers of at least an A- or above: 10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $1,000,000 for each occurrence and not less than $2,000,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $250,000 in the aggregate. 10.2 Automobile Liability Insurance with bodily injury limits of not less than $500,000 for each person and not less than $500,000 for each accident, and with property damage limits of not less than $100,000 for each accident. 103 Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident including occupational disease. 10.4 Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. 10.5 The Design Professional shall furnish insurance certificates or insurance policies to the Owner evidencing insurance in compliance with this Article 10 at the time of the execution of the Agreement. The General Liability and Automobile Liability insurance policies shall name the Owner as an additional insured, the Workers' Compensation policy shall contain a waiver of subrogation in favor of the Owner, and each policy shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to Owner and Design Professional. In such event, the Design Professional shall, prior to the effective date of the change or cancellation, furnish Owner with substitute certificates of insurance meeting the requirements of this Article 10. ARTICLE I MISCELLANEOUS PROVISIONS 11.1 The Agreement shall be governed by the laws of the State of Texas. Venue of any suit or cause of action under the Agreement shall lie exclusively in Denton County, Texas. 11.2 The Owner and Design Professional, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and w the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Design Professional shall not assign its interests in the Agreement without the written consent of the Owner. 113 The term Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments referenced in Section 3 of the Agreement which together represent the entire and integrated agreement between the Owner and Design Professional and supersedes all prior negotiations, representations or agreements, either written or oral. The Agreement may be amended only by written instrument signed by both Owner and Design Professional. When interpreting the Agreement the executed Agreement, Proposal, these General Conditions and the other attachments referenced in Section 3 of the Agreement shall to the extent that is reasonably possible be read so as to hamxmize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall he given priority in the following order: 1. The executed Agreement 2. Attachments referenced in Section 3 of the Agreement other than the Proposal 3. Thcse General Provisions 4. The Proposal Page 7 of 8 L:\616OConnctDevelopment\Dcnton\ESTSiw Evalmdon\Denton Standard Agreement Forms\GENERAL CONDITIONS-ARCI IITECT-ENGINEER.dm Revised 5-30-02 11.4 Nothing contained in the Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional. 11.5 Upon receipt of prior written approval of Owner, the Design Professional shall have the right to include representations of the design of the Project, including photographs of the exterior and interior, among the Design Professional's promotional and professional materials. The Design Professional's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confidential orproprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project 11.6 Approval by the Owner shall not constitute, nor be deemed a release of the responsibility and liability of the Design Professional, its employees, associates, agents, subcontractors, and subconsultants for the accuracy and competency of their designs or other work; nor shall such approval be deemed to be an assumption of such responsibility by the Owner for any defect in the design or other work prepared by the Design Professional, its employees, subcontractors, agents, and consultants. 11.7 All notices, communications, and reports required or permitted under the Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail in the address shown below signature block on the Agreement, certified mail, return receipt requested, unless otherwise specified herein. All notices shall be deemed effective upon receipt by the party to whom such notice is given, or within three (3) days after mailing. 11.8 If any provision of the Agreement is found or deemed by a court of competent jurisdiction fo be invalid or unenforceable, it shall be considered severable from the remainder of the Agreement and shall not cause the remainder to be invalid or unenforceable. In such event, the parties shall reform the Agreement to replace such stricken provision with a valid and enforceable provision which comes as close as possible to expressing the intention of the stricken provision. 11.9 The Design Professional shall comply with all federal, state, and local laws, rules, regulations, and ordinances applicable to the work covered hereunder as they may now read or hereinafter be amended during the term of this Agreement. I1.10 In performing the Services required hereunder, the Design Professional shall not discriminate against any person on the basis of race, color, religion, sex, national origin or ancestry, age, or physical handicap. 11.11 The captions of the Agreement arc for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement. Page 8 of 8 LA6160 Contract Development\Dmton\EST Site Evaluation\Denton Standard Agreement Fortnss\GENERALCONDITIONS-ARCHITECT-ENGINEER.doc Revised 5-30-02