2006-006
ORDINANCE NO. 2006- 00 b
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 I: 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 the 31\ d day of , 2006.
C~~L
EULINE BROCK, MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
By cr+ IJaJiL./
APPROVED AS TO LEGAL FORM:
EDWIN M. SNYDER, CITY ATTORNEY
By4AUQ~ W
S:\Qur Documents\Ordinances\05\BHC-Engrg PSA-HS Elevated Storage Tank-2006.doc
2
"J)RIGINAL
...,
PROFESSIONAL SERVICES AGREEMENT
FOR ARCHITECT OR ENGINEER
THIS AGREEMENT is made and entered into as of the 3 rvJ day of
, 20 nC ,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,
PE, 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
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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 IV - Additional Services
Tank Inspection Report (Kleinfelder) ............................................. $6,000
Tank Blast and Coating Observations (Kleinfelder).........................$41 ,310
Printing of Final Plans and Specifications ...................................... $1.200
Total Amount (Parts II - IV):................................$S9.01O
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 00
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Revised S-30'()2
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:
I. 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:
~YMtA Mp~ !~t/
~. HOWARD MARTIN r
INTERIM CITY MANAGER
, L.L.P.
BY:
WITNE~ _ ~
BY: C C ( ~
PAUL CARLINE, P.E.
Page 3 of3
L:\6160 Contract Development\Denton\High School EST Repaint\Design Professional Agreement.doc
Revised 5-30-02
BIRKHOFF, HENDRICKS & CONWAY, L.L.P.
CONSUL TING ENGINEERS
7502 Grccnvillc Ave., #220
Dallas, Texas 7523]
Fax (214) 361-0204
Phone (2] 4) 361-7900
JOliN W. BIRKIIOfF, P.E.
RONALD V. CONWAY, P.E.
GARY C. HENDRICKS, P.E.
JOE R. CARTER, r.E.
PAUL A. CARLINE, P.E.
MATT HICKEY, P.E.
DOUGLAS K. SHOWERS, P.E.
November 29, 2005
Mr. Timothy S. Fisher, P.E.
Assistant Director of Water Utilities
City of Denton
90 I A Texas Street
Denton, Texas 7620 I
Re; Professional Services Letter Proposal (Revised)
High School Elevated Storage Tank Repaint
Dear Mr. Fisher;
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 proj ect.
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.
1:\6160 comraCI developmem\demon\hign school est repaim\1el1erpropo sal(revised ]]-Z9-05)doc
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
Page20f6
OPINION OF PROBABLE COST
Based on our understanding the project scope and our experience with other similar projects, our opinion of
probable construction cost forrepainting 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 Ah'1"eement.
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. rfyou are in
agreement with this proposal, please sign and return one original of the Ci ty 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 of6
EXHIBIT "A"
ENGINEERING SERVICES
High School Elevated Storage Tank - Repaint
Part I: Desil!n 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
I) 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 II: Biddinl! 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:
I) 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 of6
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 o/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 o/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.
1. 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 of6
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
Four (4) Weeks after Inspection Report
Complete Final Plans
2 weeks after City's initial review
Advertise Project
At the Direction of the City
Bid Opening ......................................................................... 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, 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 60f6
EXHIBIT "C"
PAYMENT SCHEDULE
Payment for the basic services described under Parts I, II, and 1Il, shall be on a Lump Sum Basis in
the following Amounts:
Part 1- Design Phase: ...................................................................................... $40,600
Total Amount, Basic Services (Part I): .......................$40,600
For the Part II Bidding Phase, Part III Construction Administration Phase and the Part IV Additional
Scrvices, 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 .............................................................................$8,750
Part IV - 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, 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.
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CITY OF DENTON
GENERAL CONDITIONS
TO
AGREEMENT FOR ARCHITECTURAL OR ENGINEERING SERVICES
ARTICLE I. 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 are 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 Genernl Conditions as mooified by the Agreement and Proposal (the "Services").
].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 JX:rfonncd 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 sllbmit for the Owner's approval a schedule for thc pcrformancc of the SClVices which may bc 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 nOI, 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 inclllde
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 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 wilh the Owner. shall develop a written program for the Project to ascertain Owncr's needs and 10 establish the
requirements for the Project.
2.2.2 The Design Professional shall provide a preliminary evaluation of the O\Vl1er's program, construction schedule and construction budget requirements, each in
tcnns of the other. subject 10 the limitations set forth in Subsection 5.2.1.
2.2.3 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 Ovmcr 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.
2.3 DESIGN DEVELOPMENT PHASE
2J.l 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 otht:r documents to fix and descnbe the size and
chamcter of the Project as to architectural, structural, rtlCChanical 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 thai the
Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project.
2.3.2 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 2.2.5.
2.4 CONSTRUCTION DOCU:t1ENTS PHASE
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 OMler, 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 procun:mt:Tlt infonmtion, bidding or procurement forms. the
Conditions of the contnlct. and the (onn of Agreement between the Owner and contractor.
2.4.3 The Design Professional shall advise the O\Vller of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements
or gcneml market conditions.
1.4.4 The Design Professional shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental
authorities having jurisdiction over the Project.
2.5 CONSTUCTION CONTRACT PROCUREMENT
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2.5.] 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 O'Mlcr 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 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, then the Design Professional, at its sole cost and expense, will revise the Construction
Documents as may be required by the OMler to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not excecd
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.] The Design Professional's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contrnct
for Construction and terminates at the issuance to the Owner ofthc final Certificate for Payment, unless extended under the terms ofSubscction 8.3.2.
2.6.2 The Design Professional shall provide detailed administration of the Conemct for Construction as set forth below. For design professionals the adminislnition
shall also be in accordance with AlA document A2OJ, General Conditions of the Contract for Construction, cum.."'Ilt as of the date of the Agreement 01S may be
amended by the City of Denton special conditions, unless othetwise provided in the Agreement For engineers the administration shall also be in accordance with !.he
Standard Specifications for Public Works Construction by the North Central Texas Council ofGovemments, current a<; of the date of the Agreement, unless otherwise
provided in the Agreement.
2.6.3 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, und (2) at the O'Mler's direction from
time to time during the correction, or warranty period described in the Contract for Construction. The Design Professional shall have authority to acl on behalf of the
Owner only to the extent provided in the Agreement and these 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 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 pcrfonned 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 onsile observations the Design Professional shall keep the OMler 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 Contrnctor or any
subcontractors. The Design Professional represents that he will follow Degree of Care in peTforming all Services under the Agreement The Design Professional shall
promptly correct any defectivc designs or specifications furnished by the Design Professional at no cost to the O\\T1eT. The O'MleTS 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 OVcT 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 lo carry out the work in accordance with the Contract Documenls 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 agl..'I113 or empluyees, 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.
1..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 Ihe Design ProfessionaL Communications by and with the Design Professional's consultants shall be through the Design Professional.
1..6.9 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 01S
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 Conlnict Documents. The foregoing representations are subj<<t 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 entitled to payment in the amount certified. However, the issuance ofa Certificate for Payment shall not be a representation thai
the Design Professional has (I) 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 10 reject work which does not confonn to the Contract Documents. Whenever the Design
Professional considers it necessary or advisable for implementation of the intent of the Contrnct 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 ofthc 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 Drawin~, Product Data and
Samples for the purpose of (I) 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 Contmcl 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 scpamte contractors, while allowing sufficient time in the Design Professional's professional judgment to
permit adequate review. Review of such submiuals is not conducted for the purpose ofdet:emlining the accuraCY and completeness of other details such as dimensions
and quantities or for substantiating instructions for installation or perfomwnce of equipment or systems designed by the Contractor, all of which remain the
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responsibility of the Contractor to the extenl 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 construction means, methods, techniques. sequences or procedures. The Design Professional's
approval ofa specific item shall not indicate approval ofan assembly of which the item is a component When professional certification of performance charncteristics
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.J3 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 O'MlCT'S approval and cxecution in accordance with the Contract Documents, and may
authorize minor changes in the work not involving an adjusbnent in the Contract Sum or an extension of the Contrnct Time which are not inconsistenl with the intent
of the Contract Documents.
2.6.]4 On behalf of the Owner, the Ocsign 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,] 5 The Design Professional shall interpret and provide recommendations on matters concctning perfonnance of the O\\lTler and Contrnctor under the rcquirernents
of the Contract Documents on wriUen 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.J6 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 fonn of drawings. When making such interpretations and initial decisions, the Design Professional shall endeavor to secure faithful performance
by both Owner and Contrnctor, 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 ofnegligcnce.
2.6.11 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.]8 The Design Professional (I) shall render SC'lViccs 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 Construction Documents during
the Construction Phase.
ARTICLE 3 ADDITIONAL SERVICES
3.1 GENERAL
3.1.] 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
OMler as provided in the Agreement. in addition to the compensation for Basic Services. The services dcscnbed undcr Sections 3.2 and 3.4 shall only be provided if
authorized or oonfinncd in writing by the O\\lTler. If services described under Contingent Additional SelVices 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 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 SelVices only if
they arc not required due to the negligence or fault of Design Professional.
3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
3.1.1 If morc extcosive represCfllation at the site than is described in Subsection 2.6.5 is required, the Design Professional shall provide one or more Projext
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
3.3.1 Making material revisions in Drawings, Specifications Of other documents when such revisions arc:
1. inconsistent with approvals Of instructions previously given by the Ownt..'f. including revisions made necessary by adjusuntnts in the Owner's
program or Project budget;
2. required by the enactment Offevision of codes, laws or regulations subsequent to the preparation of such documents, or
3. due to changes required as a result ofthc Owncr's failure to rcnderdccision in a timely manner.
3.3.2 Providing SCT'\ 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.
3.33 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and
Construction Changl: Directives.
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.
3.3.4 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.
3.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the work of the Contractor, or by failure ofperfomtance
of either the OwnCT or Contractor under the Contract for Construction.
3.3.6 Providing seJVices in evaluating an extensive number of claims submitted by the Contractor or others in connection with the work.
3.3.7 Providing services in connection with n public hearing, arbitration proceeding or legal proceeding except where the Design Professional is party thereto.
3.3.8 Providing services in addition to those required by Article 2 for preparing documents for alternate, separate or sequential bids or providing savices in connection
with bidding or construction prior to the completion of the Construction Documents Phase.
3.3.9 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions to the contrdl')', all services described in this Article 3 that are
caused or necessitated in whole or in part duc 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 ....,th no additional compensation above and beyond the compensation due the Design Professional for the Basic Services. The
intervening orconcurrcnt 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 ofprospcctive sites.
3.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over thc
Project
3.4.4 Providing services relative to future facilities, systems and equipment.
3.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof.
3.4.6 Providing services to verify the accuracy of drawings or other infonnation furnished 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 pcrfonned and equipment supplied by the Owner.
3.4.8 Providing detailed quantity surveys or inventories of material, equipment and labor.
3.4.9 Providing analyses of operating and maintenance costs.
3.4.JO Making investigations, inventories ofmater1als or equipment, or valuations and detailed appraisals of existing facilities.
3.4.12 Providing assistancc in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operntion and maintenance manuals,
training personnel for operation and maintenance and consultation during operation.
3.4.J3 Providing interior design and similar services required for or in connection with the selection, procurement or installation offumiture, furnishings and related
equipment.
3.4.14 Providing services other than as provided in Section 2.6.4, aftt:r issuance to the Owner of the final Certificate for Payment and expiration of the Warranty
pcriod of the Contract for Construction.
3.4.)3 Providing scrviccs of consultants for other than architectural. civil, structural, mechanical and electrical engineering portions of the Project provided as a part of
Basic Services.
3.4.J6 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generdlly 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 ,"\lork made during con-
struction based on marked.upprints, drawings and other data furnished by the Contractor to the Design Professional.
3.4.18 Notwithstanding anything contained in the Agreement, Proposal or these General Conditions (0 the contrury, all services described in this Article 3 that are
caused or necessitated in whole or in part due to the ncgligent act or omission of the Design ProfessiOnal shall be pcrformed by the Design Professional as a part of the
Basic SClVices 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 4 OWNER'S RESPONSIBILITIES
4.1 The O'Mler shall consult with the Design Professional regarding requirements for the Project, including (I) the Owner's objectives. (2) schedule and design
constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment. systems and site requirements, as more
specifically described in Subsection 2.2.l.
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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.
-4.3 If requested by the Design Professional, the Owner shall furnish evidcnce that financial arrangements have been made to fulfill the Owner's obligations under this
Agreement
4.4 lbe Owner shall designate a representative authurized to act on the Owner's behalf with respect to the Project 1be Owner or such authorized representative 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 vmttcn
legal description of the site. The surveys and legal infonnation 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 concerning 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 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 nollimited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and
resistivity tesls, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional reconuncndations.
4.6.1 The Owner shall furnish the services of other consultants when such services are reasonably required by the scope of the Project 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, tests ofhazarclous materials,
and other laboratory and etwironmcntal 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 may be necessary at any lime for the Project, including auditing sCfVices the
Owner may require to verify the ContnLclor'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 Projector nonconfonmnce with
the Contract Documents.
4.11 Design Professional shaH propose language for certificates or certifications to be requcsted 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 DEH"ED
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.
S.I.2 The Construction Cost shall include the cost at current markel rates of labor and materials furnished by the Owner and equipment designed, specified, selccted or
specially provided for by the Design Professional, plus a reasonable allowunce for the Contractor'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 thc work during construction.
5.1..1 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 RESPO~SlBlLITY .'OR CONSTRUCnON 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 Professiooal's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither
the Design Professional nor the O\louer has control over the e05t of labor, materials or equipment. over the Contractor's methods of detennining bid prices, or over
competitive bidding or market conditions. Accordingly, the Design Professional cannot and does nol 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 ofa 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 ProCessional shall be pennitted
to include contingencies for design, bidding and price escalation, to detennine what materials, equipment. component systems and types of construction are to be
included in the Contract Documents, to make rea.<j,onable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to aqjust the
Construction Cost to the fixed limit Fixed limits, if any, shall be increased in the amount ofan increase in the Contract Sum occuning after execution of the Contract
for Construction.
5.2.3 If the Procurement Phase has not commenced within 90 days after the Design Professional submits the Construction Documents to lhe Ovmer, 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.
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ARTICLE 6 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 serviec 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 O'NTIeT'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 infonnation or materials developed pursuant 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
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 'Mitten notice should the Owner fail substantially to perform in accordance with the
tenns 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 'Mitten 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 Profcssional shall invoice the Owner for all work it satisfactorily perfonned prior to the receipt of such notice. No
amount shall be due for lost or anticipated profits, All plans, ficld surveys. and other data related to the Project shall becomc property of the Owner upon termination of the
Agreement and shall be promptly delivered to the Owner in a reasonably organizcd form. Should Owner subsequently contract with a new Design Professional for continuation
of services on the Projcet, Design Professional shall cooperate in providing infonnation.
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 incum:xl in the inteffilption
and resumption of the Design Profession31's services.
7.3 The Agreement may be tenruoated by the Owner upon not less than seven days written notice to the Design Professional in the event that the Project is permanently
abandoned. Iflhe 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 Ocsign 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 Owncr, suspend perfonnance of services under the Agreement
7.6 In the event oftenninatiOll not the fault of the Design Professional, the Design Professional shall be compensated for services properly and satisfactorily performed prior to
termination.
ARTICLE 8 PAYMENTS TO THE DESIGN PROFESSIONAL
8.1 D1RECf PERSONNEL EXPENSE
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
mandato!)' 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 EXPENSFS
8.2.1 Reimbursable Expenses arc in addition to compensation for Basic and Additional Services and include expcrtses incurred by the Design Professional and
Design Professional's employees and consultants in the interest of the Project, as identi lied in the following Clauses.
8.2.Ll Expense of transportation in connection with the Project.; expenses in conncction with authorized out-of-town travel; long-distance communications;
and fees paid for securing approval of authorities having jurisdiction over the Project.
8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents refcrenced in Subsection 2.6.19), postage and handling of Drawings,
Specifications and other documents.
8.2.1.3 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.
8.2.1 S Expense of computer-aided design and drafting equipment time when used in connection with the Project.
8.2.1.6 Other expenses that are approved in advance in writing by the Owner.
83 PAYMENTS ON ACCOUNT OF BASIC SERVICES
8.3.1 Payments for Basic Services shall be made monthly and. where applicable, shall be in proportion to seMces performed within each phase of service, on the
basis set forth in Section 2 of the Agreement and the schedule of work.
8.3.2 If and to the extent that the time initiallyestabIished in the Agreement is exceeded or extended through no fault of the Design Professional. compensation for any
services rendered during the additional pcricxt oftime shall be computed in the manner set forth in Section 2 of the Agreement.
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8.3.3 When compensation is based on a percentage of Constnlction 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 perfonned 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.
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 clays after the
presentation to the Owner of the Design Professional'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 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 O\\ltlCt 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 inspt:ction 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 anorney 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 be construed to create a liability to any person who is not a party to the Agreement, and nothing herein shall waive any oflhe parties' 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 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 least an A. or above:
10.1 Comprehensive General Liability Insurance with bodily injury limits of not less than $\ ,000,000 for each occurrence and not less than $2,000,000 in the aggregate,
and with property damage limits of not less than SIOO,OOO for each occurrence and not less than $250,000 in the aggregate.
10.2 Automobile Liability Insurance with bodily injury limits of nolless than $500,000 for each person and not less than S500,000 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 Sl ,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 O\\ltler as an additional insured, the Workers'
Compensation policy shall contain a waiver of subrogation in favor of the Owner, and eaeh 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 oflhis Article 10.
ARTICLE II MISCELLANEOUS PROVISIONS
11.1 The Agreement shall be governed by the laws of the State of Texas. Venue oC any suit or cause of action under the Agreement shall lie exclusively in Denton County,
Texas.
11.1 The Owner and Design Professional. respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agret:m<:nt and to
the partners, successors, assigns and legal representatives of such other party with respect to all covenant~ of this Agreement. The Design Professional shall not assign its
interests in the Agreement without the written consent of the Owner,
11.3 The tenn Agreement as used herein includes the executed Agreement, the Proposal, these General Conditions and other attachments reCerenced 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 Gem:ral 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 harmonize the provisions. However, should the provisions ofthcse documents be in conflict so that they can nol be reasonably harmonized,
such documents shall be given priority in the following order:
I. The executed Agreement
2. Attachments referenced in Section 3 of the Agreement other than the Proposal
3. These General Provisions
4. The Proposal
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11 A 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 jnclucle representations of the design of the Project, including photographs
of the exterior and interior, among the Design Professional's promotional and professional matenals. The Design Professional's materials shall not include the Owner's
confidential or proprietary information if the O\\ltler has previously advised the Design Professional in writing of the specific infonnatioo considered by the OMler to be
confidential or proprietary. The Owner shall provide professional credit for the Design Professional ~n 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 to the address sho\\ltl 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 Ifany provision of the Agreement is found or deemed by a court of competent jurisdiction 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 lhe intention of the stricken provision.
t 1.9 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 are for informational purposes only, and shall not in any way affect the substantive terms or conditions of the Agreement.
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