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HomeMy WebLinkAbout2003-303FILE REFERENCE FORM 2003-303 X Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Initials Change Order One Chance Order Two - Ordinance No. 2004-144 05/04/04 )R ORDINANCE NO. AN ORDINANCE AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH THE FIRM OF BOOZIOTIS & COMPANY ARCHITECTS TO PROVIDE ARCHITECTURAL SERVICES FOR THE RENOVATION OF THE CIVIC CENTER AND EMILY FOWLER LIBRARY; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE (RFSP 3030 —IN THE AMOUNT OF $184,190). WHEREAS, The professional services provider (the "Provider) mentioned in this ordinance is being selected as the most highly qualified on the basis of its demonstrated competence and qualifications to perform the proposed professional services in compliance with Chapter 2254 of the Texas Government Code, ]mown as the "Professional Services Procurement Act"; and WHEREAS, The fees under the proposed contract are fair and reasonable and are consistent with and not higher than the recommended practices and fees published by the professional associations applicable to the Provider's profession and such fees do not exceed the maximum provided by law; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. The findings and recitations contained in the preamble of this ordinance are incorporated herein by reference. SECTION 2. The City Manager or his designee, is hereby authorized to enter into a professional service agreement with the Provider, Booziotis & Company Architects, to provide architectural services for the renovation of the Civic Center and Emily Fowler Library in substantially the same form as the professional services agreement which is attached hereto and incorporated herein by reference (the "Agreement"). SECTION 3. The City Manager or his designee is authorized to expend the funds set forth in the Agreement. SECTION 4. This ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the day of 2003. EULINE BROCK, MAYOR S:\Our Documents\Ordinances\03\Booziotis- PSA 3030.doc ATTEST: JENNIFER WALTERS, CITY SECRETARY BY: C6 APPROVED AS TO LEGAL FORM: I Page 2 PROFESSIONAL SERVICES AGREEMENT FOR ARCHITECT OR ENGINEER THIS AGREEMENT is made and entered into as of the 16th day of September, 2003, by and between the City of Denton, Texas, a Texas municipal corporation, with its principal office at 215 East McKinney Street, Denton, Denton County, Texas 76201, hereinafter called "Owner" and Booziotis & Company Architects, with its corporate office at 2400 A Empire Central Drive, Dallas, Texas 75235- 4398 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 architect or engineer, as an independent contractor. The Design Professional hereby agrees to perform the services. as described herein and in the Request for Proposal 3030, 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, (describe the Project in the space below or in an attachment) Architectural services for the renovation of the Denton Civic Center and Emily Fowler Library including schematic design, design development, construction documents, construction contract procurement, administration of construction contract and construction phase as defined in the General Conditions (the `Basic Services") and such additional services as may be authorized by the Owner. SECTION 2 COMPENSATION The Owner shall compensate the Design Professional as follows: 2.1 BASIC SERVICES 2.1.1 For Basic Services the total compensation shall be $ 184,190.00 2.1.2 Progress payments for Basic Services shall be paid in the following percentages for of the total compensation for the Basic Services satisfactorily completed at the end of the following phases of the Project: Schematic Design Phase 30% Design and Development Phase 50% Construction Documents Phase 65% Bidding Phase 75% Construction Phase 100% Page 1 S9prcMContracts Documents\3030 PSA Revised 9-5-03.DOC 2.2 ADDITIONAL SERVICES 2.2.1 Compensation for additional services authorized by Owner shall be in accordance with the hourly billing rate as set forth in Attachment B or at the fixed fee rate for site visits as provided in Attachment A, at the option of the Owner. 2.3 REIMBURSABLE EXPENSES Reimbursable Expenses shall be a multiple of 1.1 times the expenses incurred by the Design Professional, the Design Professional's employees and consultants in the interest of the Project as defined in the General Conditions but not to exceed a total of $23,300.00 without the prior written approval of the Owner. The dollar amount for the Reimbursable Expenses has been included in the total contract amount of $184,190.00. ARTICLE I INSURANCE During the performance of the services under this Agreement, CONSULTANT shall maintain the following insurance with an insurance company licensed to do business in the State of Texas by the State Insurance Commission or any successor agency that has a rating with Best Rate Carriers of at least an A- or above: A. Comprehensive General Liability Irusurance with bodily injury limits of not less than $500,000 for each occurrence and not less than $500,000 in the aggregate, and with property damage limits of not less than $100,000 for each occurrence and not less than $100,000 in the aggregate. B. 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. C. Worker's Compensation Insurance in accordance with statutory requirements, and Employers' Liability Insurance with limits of not less than $100,000 for each accident. D. Professional Liability Insurance with limits of not less than $1,000,000 annual aggregate. E. The CONSULTANT shall furnish insurance certificates or insurance policies at the OWNER's request to evidence such coverages. The insurance policies shall name the OWNER as an additional insured on all such policies, and shall contain a provision that such insurance shall not be canceled or modified without thirty (30) days' prior written notice to OWNER and CONSULTANT. In such event, the CONSULTANT shall, prior to the effective date of the change or cancellation, serve substitute policies furnishing the same coverage. Page 2 SAVrch\Contracts Documenul3030 PSA Revised 9-5-03.DOC ARTICLE II ARBITRATION AND ALTERNATE DISPUTE RESOLUTION The parties may agree to settle any disputes under this Agreement by submitting the dispute to arbitration or other means of alternate dispute resolution, such as mediation. No arbitration or alternate dispute resolution arising out of or relating to this Agreement, involving one party's disagreement, may include the other party to the disagreement without the other's approval. ARTICLE III TERMINATION OF AGREEMENT A. Notwithstanding any other provision of this Agreement, either party may terminate by giving thirty (30) days' advance written notice to the other party. B. This Agreement may be terminated in whole or in part in the event of either party substantially failing t o f ulfill i is o bligations u nder t his A greement. N o s uch t ermination w ill b e a ffected unless the other party is given (1) written notice (delivered by certified mail, return receipt requested) of intent to terminate and setting forth the reasons specifying the non-performance, and not less than thirty (30) calendar days to cure the failure; and (2) an opportunity for consultation with the terminating party prior to termination. C. If the Agreement is terminated prior to completion of the services to be provided hereunder, CONSULTANT shall immediately cease all services and shall render a final bill for services to the —OWNER witbin-thirty (30ydays after the date of termination. The -OWNER -shall pay CONSULTANT for all services properly rendered and satisfactorily performed and for reimbursable expenses to termination incurred prior to the date of termination, in accordance with Article V "Compensation." Should the OWNER subsequently contract with a new consultant for the continuation of services on the Project, CONSULTANT shall cooperate in providing information. The CONSULTANT shall turn over all documents prepared or furnished by CONSULTANT pursuant to this Agreement to the OWNER on or before the date of termination, but may maintain copies of such documents for its use. ARTICLE IV RESPONSIBILITY FOR CLAIMS AND LIABILITIES Approval by the OWNER shall not constitute, nor be deemed a release of the responsibility and liability of the CONSULTANT, 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 CONSULTANT, its employees, subcontractors, agents, and consultants. Page 3 SApmh\Contracts Documents\3030 PSA Revised 9-5-03.DOC ARTICLE V NOTICES All notices, communications, and reports required or permitted under this Agreement shall be personally delivered or mailed to the respective parties by depositing same in the United States mail to the address shown below, certified mail, return receipt requested, unless otherwise specified herein. Mailed notices shall be deemed communicated as of three (3) days' mailing: Page 4 S9prch\C0ntracts Documents\3030 PSA Revised 9-5-03.DOC 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: 1. City of Denton General Conditions to Agreement for Architectural or Engineering Services. 2. Request for Proposal 3030 3. The Design Professional's Proposal —Attachment A 4. The Design Professional's Billing Rate. Table —Attachment B This Agreement is signed by the parties hereto effective as of the date first above written. CITY MANAGER ATTEST: JENNIFER WA� /LTERS,, C Y SECRETARY BYO/%-Y) iiJ ^Ja j A, A Z40j a--7 APPROVED AS TO LEG ORM: HERBERT LWOUTY, qtY ATTORNEY BY: BOOZIO`TTIS&,COMPANY ARCHITECTS BY: Name: f NU. �3o0210T1 S Title: P�sIDEwT' WITNESS: . BY: Page 5 SAprch\Contracts Documents\3030 PSA Revised 9-5-03.DOC ATTACHMENT A MATERIALS MANAGEMENT DIVISION • 901B TEXAS STREET • DENTON, TEXAS 76201 940.349.7100 • DFW METRO 817.267.0042 • FAX 940.349.7302 City of Denton Architectural Services for Renovation of Civic Center and Emily Fowler Library August 21, 2003 Final Offer Total Project Budget estimated at $2,050,000,Construction Budget of $1,750,000.00. Total Architectural Fee Basic Design -for Library . Basic Design for Civic Center Sub -total $184,190.00 $ 98,000.00 $ 47,250.00 $145,250.00 (8.3% of 1,750,000.00) Additional Services not Design $ 15,740.00 Alternate (if funding available) for Design of $3,000,000.00 ($16,875.00) Allowance/Reimbursable $ 23,200.00 Total Contract $184,190.00 (8.9% of $2,050,000.00) total project budget Approximately $80,000 set aside for other Owner expenses including but not limited to: O-Neil Ford office Geotechnical Lab Testing Lab Asbestos survey and potential abatement costs Fees and permits Overall Project Contingencies Other Owner expenses Page 6 `Dedicated to Quality and Service" www.cityofdenton.com Note: these two allowances totaling $300, 000 were used to generate a construction budget of $1, 750, 000 to be used as the basis of this proposal. These numbers can and will vary as the fee proposal is developed. Construction Budget and Contingency assumed at $1,750,000 The following fee chart is based upon these assumptions. If the construction budget/scope is adjusted more than 5% from the $1.75 M estimate prior to the beginning of the Design Development phase, the fee will be adjusted at 7% of the variance. Assumes total needs list to equal approximately $3,000,000 $16,875.00 Construction/Furnishings Dollars with detailed estimate for each line item. (Contingent on Furniture location, types, quantities and budgets included in this work additional funds) Description of Work or Phase Basic Development of a Master Plan A menu of design options, developed to schematic design level Programming Meetings/Interviews with key stakeholders. Assume 4 @ $450.00 $1,800.00 Design Phases Basic Services based upon 8.3 °l0 of Construotion Cost, inclusive of all necessary Structural, Mechanical, Electrical, Plumbing and Fire Protection $145,250.00 Schematic Design Basic Services per AIA standard Includes 30%, 50%, 75% and 100% progress meetings in Denton Special Services during SD phase City of Denton Facilities Department Meetings $1,800.00 4 @ $450.00. Provides for meetings/working sessions between City of Denton Facilities and Technical Consultants Construction Schedule $1,250.00 Develop and Set Construction Budget - professional estimating required for $2,750.00 Detailed Estimate Design Development Phase per AIA standard Includes 30%, 50%, 75% and 100% progress meetings in Denton Additional Meetings during DD phase City of Denton Facilities Department Meetings $1,440.00 4 meetings Revise Schedule and Budget $1,500.00 Construction Document Phase per AIA standard includes 50%, 75% and 100% progress meetings. ADA/TAS approval prior to bid award. Additional Meetings during CD phase Special Review and Approval Meetings at end of Phase $2,700.00 6 meetings @ $450.00 ea. Page 7 `Dedicated to Quality and Service" www.cityofdenton.com Adjust Project Schedule and Estimate $2,500.00 Bidding Phase Basic Services Construction Phase Includes monthly Owners meeting and Weekly construction meeting at site. Architect to manage Owners meeting, take notes, Contractor to moderate, take and distribute notes at construction meeting. Architect will produce field report at each site visit, and handle all routine construction forms and processes including but not limited to shop drawings, rfi's, closeout documents, etc. ADA/TAS inspection at substantial completion. Subtotal Basic Services $145,250.00 Subtotal Additional Services $15,740.00 The following Additional Services may be required, but assumptions of scope and cost have been made in areas where a reasonable assessment can be made. An allowance or contingency for additional meetings or other consultants is identified below. Civil TBD Landscape Fees and Construction Costs are Parks Department expense and not included in this proposal. NIC IT Allowance for Coordination $2,000.00 Security Allowance for Coordination $2,000.00 AV NIC Acoustician, -allow _ . _... -- -- - - - - - - --$3,000.00 ADA/TAS During Design Phases Architects management and coordination and Accessibility Consultant for Programming Phase Review and design Development Phase Review, with a final re -submission review at approximately 85% complete Construction Documents $2,500.00 Inspections during construction with Accessibility Consultants, final TAS inspection at punch list $1,500.00 State Energy Approvals $1500.00 Completion of Fumiture/Design Selection Based on Furniture Acquisition from pre -negotiated vendors Included in Basic Services assuming Furniture cost remains in project budget Post Construction Services Warranty Review 2 meetin s/onsite reviews $450.00 $900.00 Allowance for Reimbursable 7% Fee Cost Actual x 1.1 with receipts $9,800.00 Subtotal Allowances CAPPED $23,200.00 SUMMARY Subtotal Basic Services $145,250.00 Subtotal Additional Services $15,740.00 Subtotal Fee Allowances Including reimbursable expenses $23,200.00 Page 8 'Dedicated to Quality and Service" www.cityofdenton.com Project Grand Total $184,190.00 Fees/Allowances/Reimbursables Other Services Additional Meetings above and beyond those identified above $450.00 per site visit or meeting, or hourly at Owner's option Note 1: Services of Professional Estimator required if Contract requires redesign at Architect's Expense. Note 2: Bill Booziotis will attend City Council meetings related to Architects contract discussions and Construction Contract discussions. Additionally, Mr. Booziotis will attend two meetings with the Library Board or Community Groups Note 3: Architect agrees to use S Toub & Associates, presuming fees do not exceed industry standard fees. Note 4: Operations and Maintenance Cost calculations as part of design are not included per City of Denton representatives Note 5: Adjustments to scope and budget will result in a 7% fee for those amounts exceeding the original $1,750,000 assumed construction cost limitation. Allowances: • Architects allowance for coordination of IT and Security -no charge • Acoustician and/or Accessibility Consultant at Architect's cost x 1.1 • Architect's allowance for participation in additional TAS reviews and inspection and State energy review -no charge. • Other consultants determined to be required, such as Civil Engineer, or other specialized consultant, at Architect's cost x 1.1 • Reimbursable allowance shall be subject to the following conditions: Architect's obligation to the City of Denton shall not exceed two record copies of each progress review and three record copies at the end of each design phase. Architect will supply three record copies and original reproducible copy to be placed at a local reproduction house at the end of the construction document phase. At the end of the project, architect will supply four record copies and a CD containing one electronic file copy of each drawing and each specification section contained in the bidding and/or construction set. Also, the architect will supply a CD in CAD format of as built. Page 9 "Dedicated to Quality and Service" www.cityofdenton.com Contract Clarifications: • At this fee, Architect shall provide a single set of bid documents, including additive or deductive alternates designed to generate a final bid that is equal to or less than the Owner's Construction Cost Limitation, for a single bid phase, and for a single construction management phase (concurrent construction contract for both project buildings) not to exceed ten months in duration. Architect agrees to contract language to extend ownership of documents to the City of Denton subject to the following conditions: Architect cannot guarantee that consultants will be willing to agree to this clause, but will extend the industry customary license to the Owner to maintain and use copies of the documents for the Owner's use in maintaining the property as allowed by copyright laws and laws governing the practice of architecture in Texas. Architect will convey design and design details developed for the exclusive use of the project. Architect does not agree to convey Ownership of standard or typical details developed in house used in other or similar projects, or those obtained by license from outside sources and publications. • Architect agrees to use S Toub & Associates, Inc. for the Mechanical Electrical Plumbing portion of the project work with the following conditions: S Toub carries professional errors and omissions insurance in amounts equal to that carried by the Architect, and if S Toub & Associates' proposed fee and services do not exceed industry standard fees. Architect's obligation to provide written documentation from the State of Texas regarding the accessibility requirements shall be satisfied by the employment of an Independent Contract Provider, licensed to perform accessibility reviews and inspections by the State of Texas, to review the project site and design documents during the Schematic Design Phase and provide written assessment of existing conditions, to review the Architects Design Documents at the 75% complete Design Development and 75% Construction Document Phases for compliance with TAS, and to provide a pre substantial completion site review of the construction site with written comments at each stage. These are additional services at architect's cost with a 1.1 multiplier as noted above. The same reviewer will be employed to review the completed construction documents and make the state mandated inspections at the conclusion of construction as allowed by Texas law. • The architect agrees to incorporate and include IT and security system designs from the Owner's separate or in-house consultants, per the City of Denton requirement. The fee for coordination does not alter this agreement in any way. Page 10 "Dedicated to Quality and Service" www.cityofdenton.com I:r III "IT51—WI . Boozlotis & Company Architects Billing Rate Table Bill C. Booziotis, FAIA $275 Holly S. Hall, AIA $135 Aaron L. Farmer, AIA $135 Donald W. Roberts, AIA $125 Thomas Powell, AIA $110 Jess Galloway, AIA $110 Ronald Gordon $ 90 Larry Paschall $ 80 MatthewCrummey, AIA $ 75 Lois McGinnis $ 75 Joe Riley $ 75 Yvette Jarvis $ 75 Maria Nadeau $ 70 Charlotte Johnson $ 70 David Lewis $ 65 Mary Gunn $ 60 Jo Schoonover $ 60 Debra Robinson $ 50 Vincelee Stevens $ 50 Page 11 "Dedicated to Quality and Service" www.cityofdenton.com CITY OF DENTON GENERAL CONDITIONS TO AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES ARTICLE 1. ARCHITECT OR ENGINEER'S 1.1 The Architect or Engineer's services consist of those services for the Project (as defined in the agreement (the "Agreemenf') and proposal (the "Proposal") to which these General Conditions see attached) performed by the Architect or Engineer (hereinafter called the "Design Professional') or Design Professional's employees 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 care 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 performed 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 Owner's 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 Sections 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, as described by amd required in Section 2.4. The Basic Services maybe modifiedby the Agreement 2.2 2.2.1 The Design Professional, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requremetus for the Project 2.2.2 The Design Professional shall provide a preliminary evaluation of the Owner's program, construction schedule and construction budget requirements, each in terms 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 progran, 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 shell contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 2.25 The Design Professional shall submit to the Owner a preliminmy detailed estimate of Construction Cost based on cement area, volume or other unit costs and which indicates the c ost of each c ategory of work involved in c onstmcting the Project and a stablishes an elapsed time factor for the p eriod of time from the cotrmtenoement to the completion of construction. 23 DESIGN DEVELOPMENT PHASE 23.1 Based on the approved Schematic Design Documents 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 describe the size 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 ofthe Project 23.2 The Design Professional shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Section 22.5. r YL. NM Yx tY.Yi hd �Yt. 2.4.1 Based 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 detail requirements for the construction 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 procurement information, bidding or procurement forms, the Conditions of the contract, and the form of Agreement the Owner and contractor. 2.43 The Design Professional shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicatedby changes in req uirements remenis or general market conditions. 2A.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for Ore approval of governmental authorities bavmg jurisdiction over the Project 25 CONSTUCTION CONTRACT PROCUREMENT 25.1 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 Page 1 of 8 S.'\prch\blanks\Awhitect-Engineer GENERAL CONDITIONS.doc Revised 5-30-02 limitation, the competitive sealed bidding process. Although the Owner will consider the advice of the Design Professional, the award of the construction contract is in the sole discretion of the Owner. 2.5.2 If the construction contract amount for the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Design Professional, than 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 cormnences with the award of the Contract for Construction and terminates at the issuance to the Owner of the foul Certificate for Payment, unless extended under the terra of Subsection 8.3.2. 2.6.2 The Design Professional shall provide detailed administration of the Contract for Construction as set forth below. For design professionalss 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 Construction by the North Central Texas Council of Governments, current as of the date of the Agreement, unless otherwise provided in the Agreement 2.63 Construction Phase duties, responsibilities and lirrdtations of authority of the Design Professional shall not be restricted, modified or extended without written agreement of the Owner and Design Professional. 2.6A 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 conection, or warranty period described in the Contract for Construction. The Design Professional shall have authority to set on behalf of the Owner only to the extent provided in the Agreement and these General Conditions, unless otherwise modified by written instrument 2.65 The Design Professional shall observe the construction site at least one tirne a week, while construction 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 performed in a matter indicating that the wok 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 on�ite 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 or any subcontractors. The Design Professional represents that he will follow Degree of Care in performing all Services under the Agreement The Design Professional shall promptly correct any defective designs or specifications furnished by the Design Professional at no cost to the Owner. The Owner's 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 Owner's 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 Conbrctor's schedules or failure to tarty out the work in accordance with the Contact Documents except insofar as such failure may result from Design Professional's negligent acts or omis- sions. The Design Professional shall not have control over or charge of acts car omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons perforrtmrgportions 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 Contact Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Design Professional. Comnmmicationsby and with the Design Professional's consultants shall be through the Design Professional. 2.69 Based on the Design Professional's observations at the site of the work and evaluations of the Contractor's 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 Contractor's Application for Payment, that the work has progressed to the point indicated and that the quality of the Work is in accordance with the Contact Documents. The foregoing representations are subject to manor 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 entitled to payment in the amount certified However, the issuance of a Certificate for Payment shall not be a representation that the Design Professional bass (1) reviewed construction means, methods, techniques, sequences orprocedures, 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 Contact Documents, the Design Professional will have authority to require additional inspection or testing of the work in accordance with the provisions 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 performing 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, statutes, 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 contactors, while allowing sufficient time in the Design Professional's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of detemihning 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 rennin the 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 sated by the Design Professional, of construction means, methods, techniques, sequences or procedures. The Design Professional's approval ofa specific item shall not indicate approval ofan assembly ofwhich the item is a component Whmprofmsionalcemtifimtimofpmfomatcechamctenkes Page 2 of 8 S:\prchU9anks\Amhitect-Engineer GENERAL CONDITIONS.doc Revised 5-30-02 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 Documents. 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 Contract Documents. 2.6.14 On behalf of the Owner, the Design Professional shall conduct inspections to determine the data 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 concentingperformsnce 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 malcing 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 rendered in good faith in accordance with all the provisions of this Agreement and in the absence ofnegligence. 2.6.17 The Design Professional shall render written decisions within a reasonable time 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, shag 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 Construction Documents during the Construction 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 32 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 part of such Contingent Additional Services are notrequired, 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 are not required due to the negligence or fault of Design Professional. 3.2 PRO.IECI' REPRESENTATION 3.2.1 If more a xtensive representation at the s ite than is described in S ubsection 2.6.5 is required, the D esign Professional s hall 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 therefor 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: 1. 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. requiedby the enactmentorrevision of codes, laws orregulations subsequent to the preparation of such documents, or 3. due to changes required as a result of the Owner's failure to render decision in a timely manner. 33.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, or the Ownels schedule, except for services required under Subsection 2.5.2. 333 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives. MA 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 33S 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. Page 3 of 8 S:\pmh\blanks\Architect-Engineer GENERAL CONDITIONS.doc Revised 5-30-02 33.6 Providing services in evaluating an extensivenumber 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 party 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 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 3.3.9. 3.4 OPTIONAL ADDITIONAL SERVICES 3A.1 Providing financial feasibility or other special studies. 3A.2 Providing planning surveys, site evaluations or comparative studies of prospective 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 a facilities or to make measured drawings thereof. 3.4.6 Providing services to verify the accuracy, of drawings or other infommtion fumishedby the Owner. 3.4.7 Providing coordination of construction perforrned 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. 3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor. 3A.9 Providing analyses of operating and maintenance costs. 3A.10 Makmg investigations, inventories of materials in equipment, or valuations and detailed appraisals of exdstng facilities. 3A.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, naming personnel for operation and mauntenarnce and consultation during operation 3A.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 3A.14 Providing services other than as provided in Section 2.6A, after issuance to the Owner of the final Certificate for Payment and expiratioo of the warranty period of the Contract for Construction. 3.4.15 Providing services of consultants for other than architectural, civil, structural, mechanical and electrical engineermgportions of the Project provided as apart of Basic Services. 3A.16 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 3.4.17 Preparing a set of reproducible record drawings in addition to those required by Subsection 2.6.19, showing significant changes in the work made during con- struction based on marked -up prints, drawings and other data funishedby the Contractor to the Design Professional. 3.4.18 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 set or omission of the Resign Professional shall be performed by the Design Professional as a part 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 3A.18. ARTICLE 4 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, flwnbility, expendability, special equipment, systems and site requirements, as mare speci- fically described in Subsection 2.2.1. 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 these costs. 43 If requested by the Design Professional, the Owner shall fiunish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement Page 4 of 8 S:\prch\blanksVvchitect-P.ngineer GENERAL CONDTTIONS.doc Revised 5-30-02 4.4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project The Owner or such authorizedrepresentstive shall render 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 information on the survey shall be referenced to a projectbenchmark. 4.6 Where applicable, the Owner shall furnish the services of geotechnical engineers when sucb services are nquestedby the Design Professional. Such services may include but are not hunted to test borings, testpits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and re- sistivity tests, including necessary operations for anticipating sub -soil conditions, with reports and appropriate professional recommendations. 4.6.1 The Owner shall fiunish the services of other consultants when such services are reasonablyrequiredby the scope of the Project and are requestedby 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, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents. 4.8 The Owner shall furnish all legal, accounting and insurance counseling services as rosy be necessary at 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 completeness 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 forreview and approval at least fourteen (14) days prior to execution. The Owner agrees not to request certifications that would require knowledge m services beyond the scope of the Agreement ARTICLE 5 CONSTRUCTION COST 5.1 CONSTRUCTION COST DEFINED 5.1.1 The Construction 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 curent market rates of labor and materials fumishedby the Owner and equipment designed, specified, selected or specially provided for by the Design Professional, plus a reasonable allowance for the Contractor's overhead and profit ht addition, a reasonable allowance for con- tingencies shall be included for market conditions at the time ofbiddmg and for changes in the work during construction. 5.1.3 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 9.2.1 Evaluations of the Owner's Project budge% preliminary, estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Design Professional represent the Design Professional's best judgment as 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 ar 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 w a condition of the Agreementby the famishing, proposal or establishment of a Project budget unless such fixed limit has been agreed upon in writing and signed by the parties thereto. If such a fond limit has been established the Design Professional shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included it 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 it the Contract Sum occurring after execution of the Contract for Construction. 523 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to the Owner, any Project budget a fund limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industrybetween the date of submission of the Construction Documents to the Owner and the date on whichproposals are sought ARTICLE 6 OWNERSHIP AND USE OF DOCUNIIUM 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 terminator 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 pmsuamt to the Agreement in another project or for other purposes than are specified in the Agreement the Design Professional is released from any and all liability relating to their use in that project Page 5 of 8 S:\prch\blanks\Amhitect-Engineer GENERAL CONDMONS.doc Revised 5-30-02 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 terms 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 suchnotice. 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 then 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 expanses 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 pemnanenty 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 tray, 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 shell be compensated for services properly and satisfactorily performed prior to terrdnation. ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL 8.1 DIRECT PERSONNEL EXPENSE 8.2 8.1.1 Direct Personnel Expense is defined as 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. 8.2.1 Reimbursable Expenses are 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 Project; expenses in connection with authorized outof-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project 8.2.1.2 Expeme of reproductions (except the reproduction of the sets of documents referenced in Subsection 2.6.19), postage and handling of Drawings, Specifications and other documents. 8.2.13 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense ofrenderings, models and mock-ups requested by the Owner. 8.7.1.5 Expense of computer- tided design and drafting equipment time when used in connection with the Project 9.11.6 Other expenses Scat are approved in advance in writingby the Owner. 83 PAYMENTS 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 each 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 estabhsbed 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 setforth in Section 2 of the Agreement 833 When compensation is based on a percentage of Construction Cost and anyportions of the Project aredeleted 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 on (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 8A PAYMENTS ON ACCOUNT OF 8.4.1 Payments on amount of the Design Professional's Additional Services and for Reimbursable Expenses shall be made moony within 30 days after the presentation to the Owner of the Design Professional's statement of services rendered or expenses incurred Page 6 of 8 S:\prch\blanks\Architect-Engmeer GENERAL CONDITIONS.doc Revised 5-30-02 84 PAYMENTS WITHEINLD No deductions shall be made from the Design Professional's compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, 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 to 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 fmal 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 attorney 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, a employees in the performance of the Agreement. 9.2 Nothing herein shall be construed to create a liability to anyperson who is not a party to the Agreement and nothing herein shall waive any of the parties' defenses, both at law or equity, to easy claim, cause of action, or litigation filed by anyone not a party to the Agreement including the defense of governmental 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 Carriers of at lent 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 5250,000 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 10.3 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 If 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 painters, successors, assigns and legal representatives to the otherparty to this Agreement and to 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 in agreements, either written or coal. The Agreement may be amended only by written instn,men, signed by both Owner and Design Professional. When interpreting the Agreement the a xecuted Agreement Proposal, these General C onditions and the o then attachments r eferenced in S ection 3 o f the Agreement s hall to the extent that i s reasonably possible be read so as to harmonize the provisions. However, should the provisions of these documents be in conflict so that they can not be reasonably harmonized, such documents shall be given priority in the following order: 1. The executed Agreement 2. Attachments referenced in Section 3 of the Agreement other than the Proposal 3. These General Provisions 4. The Proposal IIA 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 ofprior 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 shell 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 confi- dential or proprietary. The Owner shall provide professional credit for the Design Professional on the construction sign and in the promotional materials for the Project Page 7 of 8 S:\prch\blanks\Amhv&ct-Engineer GENERAL CONDITIONS.doc Revised 5-30-02 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 to 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 competentjurisdiction to 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. 11.10 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 arefor informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement Page 8 of 8 S:\pmh\blanks\Arclutect-Engineer GENERAL CONDMONS.doc Revised 5-30-02