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HomeMy WebLinkAboutContract 46641 CITY SECRETARiAww DESIGN PROCUREMENT AGREEMENICMRACT NO. ROSE GARDEN PHASE II PROJECT WHEREAS, the Fort Worth Garden Club and the City of Fort Worth, a Texas municipal corporation ("City"), each desire to make certain improvements to the Rose Garden at the Fort Worth Botanic Garden in the City of Fort Worth, including the restoration of the Rose Garden shelter, cascade ramp and Lower Rose Garden in a historical sensitive approach; and WHEREAS, FWGC is a legally constituted non-profit entity, acting by and through its duly authorized President, and is willing to advance the Rose Garden Phase II Restoration Plan ("Project") on an earlier schedule than it might otherwise have been implemented at no additional cost to the City; and WHEREAS, FWGC engaged the services of Bennett Benner Partners ("BBP") to complete a detailed conceptual design, working closely with City staff, and retained the services of BBP to provide for the final design, engineering and construction plans for the Project; and WHEREAS, FWGC engaged the services of Bean Electrical to complete a detailed site electrical assessment, working closely with City staff and BBP to determine the capabilities and capacity of the existing electrical network for use in the final design, engineering and construction plans for the Project; and WHEREAS, staff has reviewed the scope, fee, and schedule for the design of the project and find them to be fair and reasonable. NOW, THEREFORE, for and in consideration of the covenants and conditions contained herein, the City and the FWGC do hereby agree as follows: I. General Requirements A. The Project will generally consist of the restoration of the Rose Garden shelter, cascade ramp and Lower Rose Garden in a historical sensitive approach. A current estimate of the construction cost is shown as z Attachment A. M C-) B. FWGC will retain Bennett Benner Partners as the Architect for the Project m pursuant to a written agreement between them (the "Contract") that has been Q A reviewed by the City and which is attached hereto as Attachment B. C. City agrees to reimburse BBP, on an invoice-basis, for Architectual work on o the Rose Garden Phase II Restoration Plan, and Bean Electrical, on an s OFFICIAL RECORD Design Procurement Agreement CFW-FWGC Rose Garden Phase II Reconstruction CITY SECRETARY Page 1 of 6 FT. WORTH,TX invoice-basis, for Assessment work on the Rose Garden Phase II Restoration Plan upon presentation, via FWGC, of a monthly invoice for design and preparation of final plans, engineering drawings, studies, renderings, contract specifications, estimates, and other documents, (collectively the "Rose Garden Restoration Plan") necessary to restore the Rose Garden, Phase 11 required by this Agreement. Reimbursement shall be based on the compensation specified in the Engineering Contract, in an amount not to exceed $70,000.00. Upon final payment, all designs, drawings, specifications, documents, and other Work Product, whether in hard copy or in electronic form, shall become the property of the City. D. The FWGC further covenants and agrees to, and by these presents does hereby, indemnify and hold the City, its officers, agents and employees harmless against any and all suits, actions or claims of any character, including, but not limited to, those for property damage or loss and/or personal injury including death, that may relate to, arise out of or be occasioned by (i) FWGC's breach of any of the terms of this agreement or (ii) any act or omission of FWGC or any of its affiliates, their officers, agents, associates, employees, contractors or subcontractors, related to the project, except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of the city its officers, agents, employees, or separate contractors, and in the event of joint and concurrent negligence of both FWGC and the City, responsibility, if any, shall be apportioned comparatively in accordance with the laws of the state of Texas. E. FWGC agrees to require Engineer to, pursuant to Texas Local Government Code Section 271.904, indemnify, hold harmless, and defend the City against liability for any damage caused by or resulting from an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the BBP or BBP'S agent, consultant under contract, or another entity over which the Engineer exercises control. F. FWGC agrees that the Contract shall include provisions granting to the City Design Procurement Agreement CFW- FWGC Rose Garden Phase II Reconstruction Page 2 of 6 the right to enforce such contracts as an express intended third party beneficiary of such contract. ACCORDINGLY, the City, through its Assistant City Manager, and FWGC, through its President, have each caused this instrument to be executed in multiple counterparts to be effective as of the date subscribed by the Assistant City Manager. FORT WORTH GARDEN CLUB CITY OF FORT WORTH By.,IIZZ11-1)Vf-,,� Taddie Hamilton Susan Alanis President Assistant City Manager Date �06/a Date: S � - s Recommended by: A T TL31: Parks & Community Services Department � V- °oma)- 0 _ °,4 fl?blihard Zavala ar J. K 8or City Secre ary -�'°� °° X p►� Approved as to Form & Legality: M&C No. G-18431 Date: March 3, 2015 Douglas W. Black Assistant City Attorney OFFICIAL.RECORD CITY SECRETARY FT.WORTH,TX Design Procurement Agreement CFW-FWGC Rose Garden Phase II Reconstruction Page 3 of 6 List of Attachments to this Agreement Attachment A—Construction Cost Estimate TERM SHEET Rose Garden,Phase II Funding Plan for Botanic Garden Rose Garden Phase If lmvrc vements Total Project Estimate 5753,612 Garden Club Proposed Funding $55Q,000 Prosed City Match 5205000 Proj_det Financinh Partnership An initial meeting was held December 5,2014 on the proposed financing terms forte project.Those present included Elaine Petrus and Maurie Reynolds,Fort Worth Garden Club,Brandon Elms,The Projects Group and Richard Zavala and Sandra Youngblood,City of Fort Worth Part s and Community Services Department.Since that time,the project has adjusted due to value engineers ig and unforeseen site gonditions and changes to project scope. t. Garden Club's portion of the current project estimate $582,937 a. Fain Construction $480,628 (Shelter refurbishment,adjoining masonry work,fountain repairs) b. Construction contingency $30,000 c. Owner cost contingency $24,400 d. Reimbursable contingency $500 e. Project management $40.850 f. Two(2)Scupper repair and materials 6 559 $582,937 3. City's portion of the current project estimate $170,675 a. Materials i. inCon-trol Materials $1,513 ii. Cast iron grates $7,469 iji. Roofing $5.682 iv. Fountain nozzle $602 v. GAP(sand) $2,572 vi. Trades(11atwork in horseshoe area) $15,000 $32,838 b. Contractual services i. Lion Head sculpture $5,925 ii. Install Lion Head sculpture(may move to Garden Club) $6,095 iii. Bore for service lines $5,000 iv. Replace one(1)scupper $1,689 $18,709 lli'Jec _ _ Design Procurement Agreement CFW-FWGC Rose Garden Phase II Reconstruction Page 4 of 6 c. Professional Service Fees i. Bennett&Benner Partners Construction documentskContractor negotiation $30,000 Construction observation $27,750 Design contingency fee $3,500 Reimbursable expenses $4.500 ii. Bean Electrical (Site assessment) $4,400 iii. Permit Fee Reimbursement $2,500 $72,650 d. Electrical Cost i. Lower Rose Garden $2,513 ii. Shelter1$ 4 282 $16,795 C. City Employees'Salaries i. Trades(Flatwork) $25,000 ii. GAP(Sandblasting) $4,683 $29,683 3. The City shall allocate the remaining balance from die$200,000 amount to d a future capital improvement project(s)in the Botanic Garden to be mutually agreed upon w ith the FWGC. Expense of City funds sliall be in accordance with the State Local Government Code. 4. Any cost participation by the City requires that expenditures be conducted in accordance with the State Local Government Code. Current Proiect Financing Summary Total Project Budget $75.-,612 Cash,on hand FWGC: $55(,000 Professional Services/materials paid by Garden Club $571,037 Proj@ct Gap S21,037 Identified City Funding $200,000 Professional Services/materials/salaries paid by City $170.675 Remaining Allocated City Funds (S29325) Revibwed and approved: Fort Worth Garden Clu a e~ 7 � Ci of Fort Wort. a e 21: k Design Procurement Agreement CFW-FWGC Rose Garden Phase II Reconstruction Page 5 of 6 Attachment B—Contract [follows] Design Procurement Agreement CFW-FWGC Rose Garden Phase II Reconstruction Page 6 of 6 TM Document 6101 - 2007 Standard Form of Agreement Between Owner and Architect I AGREEMENT made as of the first day of October in the year twenty fourteen. (In words, indicate day,month and)ear) BETWEEN the Architect's client identified as the Owner: ADDITIONS AND DELETIONS: The author of this document has Fort Worth Garden Club Inc. added Information needed for its 3220 Botanic Garden Blvd. completion.The author may also Fort Worth,Texas 76107 have revised the text of the original AIA standard form.An Additions and do The Projects Group Deletions Report that notes added information as well as revisions to 420 Throckmorton,Suite 910 the standard form text is available Fort Worth,Texas 76102 from the author and should be Attention:Leah Gilbert reviewed.A vertical line In the left margin of this document indicates and the Architect: where the author has added necessary information and where Bennett Benner Partners,Inc. the author has added to or deleted 500 West r Street,Suite 1400 from the original AIA text. Fort Worth,Texas 76102 Attention:R.Gannon Gries AIA This document has important legal consequences.Consultation with an attorney Is encouraged with respect to Its completion or modification. for the following Project: Botanic Garden Phase 2 Approximately 109 acres of land known as the Fort Worth Botanic Garden("Botanic Garden")owned by the City of Fort Worth(the"City") The Owner and Architect agree as follows. AIA Document 8701*"—2007(fonnedy B161 m—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American institute of Architects.All rights Inst reserved.WARNING:This AIA^ Document Is protected by U.S.Copyright Lew and Intemational Treaties.Unauthorized reproduction or distribution of this AIA° Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by ALA software at 17:11:27 on 10/02/2014 under Order No.4204926427 1 which expires on 0 610 11201 5,and Is not for resale. User Notes: (1516466287) TABLE OF ARTICLES 1 INITIAL INFORMATION 2 ARCHITECT'S RESPONSIBILITIES 3 SCOPE OF ARCHITECT'S BASIC SERVICES 4 ADDITIONAL SERVICES 5 OWNER'S RESPONSIBILITIES 6 COST OF THE WORK 7 COPYRIGHTS AND LICENSES 8 CLAIMS AND DISPUTES 9 TERMINATION OR SUSPENSION 10 MISCELLANEOUS PROVISIONS 11 COMPENSATION 12 SPECIAL TERMS AND CONDITIONS 13 SCOPE OF THE AGREEMENT EXHIBIT A ARCHITECTURAL DESIGN SERVICES PROPOSAL EXHIBIT B RELEASE AND WAIVER OF LIABILITY EXHIBIT C HOURLY RATES FOR ADDITIONAL SERVICES OF ARCHITECT ARTICLE 1 INITIAL INFORMATION § 1.1 This Agreement is based on the Initial Information set forth in this Article l; The Owner has been granted the right by the City to manage construction of certain alterations or restoration to existing facilities at the Botanic Garden,which includes restorations to the Rose Garden Colonnade and Oval Rose Garden(the"Project')to be located within the Botanic Garden(the"Site"). The Owner has,will,or may retain certain other engineering and design consultants for the Project. The Architect, engineering and design consultants retained by the Owner and any outside consultants retained by the Architect may collectively be referred to herein as the"Design Team." The Design Team is listed in Section 12.2 below and any other consultants that are retained for the Project by or at the direction of Owner will be included as members of the Design Team. The Owner has also retained the services of the Contractor set forth below to provide cost consulting services during the design phases of the Project as further described in Article 6 below. Owner's Cost Consultant and Construction Manager at Risk("Contractor"): The Fain Group,Inc.,a Texas corporation P.O.Box 750 Fort Worth,Texas 76101 § 1.2 The Owner's anticipated dates for commencement of construction and Substantial Completion of the Work are set forth below: A Commencement of construction date: November 1,2014 AIA Document B101"'—2007(formerly 6161 TM—1997).Copyright O 1974,1878,1887,1997 and 2007 by The American Institute of Architects.All rights InIL reserved.WARNING:This AIAa Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 2 of this AIA® Document,or any portion of lt,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10002/2014 under Order No.4204926427 1 which expires on 05/0112015,and is not for resale. User Notes: (1516466287) .2 Substantial Completion date: February 28,2015 § 1.3 The Owner and Architect may rely in a reasonable and professional manner on the Initial Information. Both parties, however, recognize that such information may materially change and, in that event, the Owner and the Architect shall appropriately and reasonably adjust the schedule, the Architect's services and the Architect's compensation if reasonably justified under the circumstances. ARTICLE 2 ARCHITECT'S RESPONSIBILITIES § 2.1 The Architect shall provide the professional services as set forth in this Agreement. § 2.2 The Architect shall perform its services consistent with the generally accepted standards of professional skill and care provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional competence, diligence,skill,and care and the orderly progress of the Project. § 2.3 The Architect shall identify a representative authorized to act on behalf of the Architect with respect to the Project. § 2.4 Except with the Owner's knowledge and consent,the Architect shall not engage in any activity,or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. § 2.5 (Paragraphs deleted) Architect shall maintain the insurance described below in Section 12.2. ARTICLE 3 SCOPE OF ARCHITECT'S BASIC SERVICES § 3.1 The Architect's Basic Services consist of those described in Article 3 and in Architect's proposal attached as Exhibit "A" hereto and include properly engineered architectural services for the Project and coordination of the services performed by the other members of the Design Team so that all portions,parts and systems of the Project are properly integrated. The relative design responsibilities of the Architect, as well as any structural and mechanical engineers and the corresponding responsibilities of Owner and Contractor are indicated on the Architectural Design Services Proposal attached as Exhibit"A" hereto;provided that Architect will be responsible for compliance with laws,codes,regulations and technical requirements with respect to all architectural elements of the Project. During each phase of the Services described below, Architect will incorporate applicable information from relevant documents supplied by the other members of the Design Team into the documents being produced during that phase by Architect. § 3.1.1 The Architect shall manage the Architect's services, consult with the Owner, research applicable design criteria,attend Project meetings,communicate with members of the Design Team and report progress to the Owner. § 3.1.2 The Architect shall coordinate its services with those services provided by the Owner and the Design Team, The Architect shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner and the Design Team in a reasonable and professional manner consistent with the standard of care set forth above in Section 2.2.The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any error,omission or inconsistency in such services or information. The Architect shall be responsible for any error,omission or inconsistency in the services or information furnished by Architect or its consultants. § 3.1.3 As soon as practicable after the date of this Agreement,the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services.The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set forth in the Initial Information. The schedule shall include reasonable allowances for periods of time required for the Owner's review, for the performance of the Design Team, and for approval of submissions by authorities having jurisdiction over the Project. Once approved by the Owner,time limits established by the schedule shall not,except for reasonable cause, AIA Document 8701 r`—2007(formerly B151 TM—1997).Copyright O 1974.1978,1987,1987 and 2007 by The Amedcen Institute of Archkocts.AN rights Inst. reserved.WARNING:This AIAs Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 3 of this AIAO Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extant possible / under the low.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order No.4204928427_1 which expires on 05/01/2015,and is not for resale. User Notes: (1518488287) be exceeded by the Architect.With the Owner's approval,the Architect shall adjust the schedule,if necessary as the Project proceeds until the commencement of construction. I § 3.1.4 The Architect shall not be responsible for an Owner's directive or substitution made without the Architect's approval,which approval will not be unreasonably withheld by the Architect. § 3.1.5 The Architect shall, at appropriate times, contact the governmeantal authorities required to approve the Construction Documents and the entities providing utility services to the Project. In designing the Project, the Architect shall respond to applicable design requirements imposed by such governmental authorities and by such entities providing utility services. § 3.1.6 The Architect 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. §3.1.7 Throughout the course of the Architect's services under this Agreement,the Architect shall,as a part of Basic Services: .1 keep the Owner informed of its services including, without limitation, submitting to Owner, at appropriate intervals, written reports monitoring the progress of the Architect's services and the Work; .2 attend meetings as required by Owner relative to the design and construction of the Project; .3 be responsible for providing all certification(s)required by any state,federal or local authority having jurisdiction over the Project;and .4 fully coordinate its services hereunder with all other members of the Design Team. § 3.2 SCOPE PHASE SERVICES § 3.2.1 The Architect shall develop Scope Documents for the Project for the Owner's review and comment. The Architect shall review laws,codes,and regulations applicable to the Architect's services and will be responsible for reviewing the Scope Documents for compliance with laws,codes and technical requirements. (Paragraphs deleted) § 3.3 DESIGN DEVELOPMENT PHASE SERVICES § 3.3.1 Based on the Scope Documents approved by Owner, on the concepts expressed in any other data or documents furnished to Architect by other members of the Design Team,and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work,the Architect shall prepare Design Development Documents for the Owner's approval. The Design Development Documents shall illustrate and describe the development of the approved Scope Documents and shall consist of drawings and other documents including plans, sections, elevations,typical construction details, and diagrammatic layouts of building systems to fix and describe the size and character of the Project as to architectural, structural, mechanical, electrical and plumbing systems, and such other elements as may be appropriate, including any elements provided by the other consultants retained by the Architect.The Design Development Documents shall also include outline specifications that identify major materials and systems and establish in general their quality levels. § 3.3.2 The Architect shall coordinate with Contractor during Contractor's preparation of detailed estimates of the Cost ofthe Work based on the Design Development Documents in accordance with Section 6.3. Owner,Architect, and Contractor will review such estimates and cooperate to reconcile any differences between such estimates and Owner's budget for the Cost of the Work, including modification of the Design Development Documents if required. If the resulting estimate of the Cost of the Work based on the approved Design Development Documents exceeds the Owner's budget,the Architect shall provide a detailed list of cost reduction options to the Contractor for repricing and subsequent submission to the Owner for review and approval in accordance with Article 6. § 3.3.3 The Architect shall submit the Design Development documents to the Owner, advise the Owner of any adjustments to the Design Development Documents or the estimate of the Cost of the Work, and request the Owner's approval. AIA Documant 8101 TM—2007(formerly 11151TO—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.NI rights Ink. reserved.WARNING:This AIM Document Is protected by U.S.Copyright Law and international Treaties.Unauthorized reproduction or distribution 4 of this AIAO Document,or any portion of it,may result In severe civil and criminal penalties,end will be prosecuted to the maximum extent possible t under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order No.4204928427_1 which expires on 05/01/2015,and is not for resale. User Notes: (1518488287) § 3.3.4 The Architect shall obtain the Owner's written acceptance of the Design Development Documents and Contractor's estimate of the Cost of the Work that is based on the approved Design Development Documents before proceeding with the Construction Documents Phase. § 3.4 CONSTRUCTION DOCUMENTS PHASE SERVICES § 3.4.1 Based on the Owner's approval of the Design Development Documents (including Design Development Documents prepared by any other member of the Design Team), and on the Owner's authorization of any a4justments in the Project requirements and the budget for the Cast of the Work, the Architect shall prepare Construction Documents for the and Owner's approval. The Construction Documents shall illustrate and describe the further development of the approved Design Development Documents and shall consist of Drawings and Specifications setting forth in detail the quality levels of materials and systems and other requirements for the construction of the Work.The Owner and Architect acknowledge that in order to construct the Work the Contractor Will provide additional information, including Shop Drawings, Product Data, Samples and other similar submittals, which the Architect shall review in accordance with Section 3.6.4. § 3.4.2 The Architect shall incorporate into the Construction Documents the design requirements of governmental authorities having jurisdiction over the Project. § 3.4.3 During the development of the Construction Documents, the Architect shall assist the Owner in the development and preparation of(1) bidding and procurement information that describes the time, place and conditions of bidding, including bidding or proposal forms; (2) the form of agreement between the Owner and Contractor;and(3)the Conditions of the Contract for Construction(General,Supplementary and other Conditions). The Architect shall also compile a project manual that includes the Conditions of the Contract for Construction and Specifications and may include bidding requirements and sample forms. § 3.4.4 The Architect shall coordinate with Contractor during Contractor's preparation of detailed estimates of the Cost of the Work based on Architect's Construction Documents in accordance with Section 6.3. Owner,Architect, and Contractor will review such estimates and cooperate to reconcile any differences between such estimates and Owner's budget for the Cost of the Work,including modification of the Construction Documents if required. If the resulting estimate of the Cost of the Work based on the approved Construction Documents exceeds the Owner's budget, the Architect shall provide a detailed list of cost reduction options to the Contractor for re-pricing and subsequent submission to the Owner for review and approval in accordance with Article 6. § 3.4.5 The Architect shall submit the Construction Documents to the Owner,advise the Owner of any adjustments to the Construction Documents or the estimate of the Cost of the Work,take any action required under Article 6,and request the Owner's approval. § 3.5 BIDDING OR NEGOTIATION PHASE SERVICES § 3.5.1 GENERAL When requested by Owner, Architect shall assist the Owner in evaluating the Contractor's list of prospective subcontractors and suppliers. Following the Owner's approval of the Construction Documents, if requested by Owner, and as directed by Owner, the Architect shall assist the Owner and Contractor in (1) obtaining either competitive bids or negotiated proposals; (2) confirming responsiveness of bids or proposals; (3)determining the successful bid or proposal,if any;and,(4)awarding and preparing contracts for construction. § 3.5.2 COMPETITIVE BIDDING § 3.5.2.1 Bidding Documents shall consist of bidding requirements and proposed Contract Documents approved by the Owner. I § 3.5.2.2 If requested by Owner,and at the direction of Owner,the Architect shall assist the Owner in bidding the Project by .1 procuring the reproduction of Bidding Documents for distribution to prospective bidders; .2 distributing the Bidding Documents to prospective bidders, requesting their return upon completion of the bidding process, and maintaining a log of distribution and retrieval and of the amounts of deposits,if any,received from and returned to prospective bidders; .3 organizing and conducting a pre-bid conference for prospective bidders; AIA Document B101^—2007(formerly B151^—1997).Copyright O 1974,1979,1967,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIAI Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 5 of this AIA° Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible f under the law.This document was produced by AIA software at 17:11:27 on 10102/2014 under Order No.4204926427_1 which expires on 05!0112015,and is rat for resale. User Notes: (1516466267) .4 preparing responses to questions from prospective bidders and providing clarifications and interpretations of the Bidding Documents to all prospective bidders in the form of addenda;and .5 organizing and conducting the opening of the bids,and subsequently documenting and distributing the bidding results,as directed by the Owner. § 3.5.2.3 The Architect shall consider requests for substitutions,if the Bidding Documents permit substitutions,and shall prepare and distribute addenda identifying approved substitutions to all prospective bidders. § 3.5.3 NEGOTIATED PROPOSALS § 3.5.3.1 Proposal Documents shall consist of proposal requirements and proposed Contract Documents. I § 3.5.3.2 If requested by Owner, and at the direction of Owner, the Architect shall assist the Owner in obtaining proposals by .1 procuring the reproduction of Proposal Documents for distribution to prospective contractors, and requesting their return upon completion of the negotiation process; .2 organizing and participating in selection interviews with prospective contractors;and .3 participating in negotiations with prospective contractors, and subsequently preparing a summary report of the negotiation results,as directed by the Owner. I § 3.5.3.3 The Architect shall consider requests for substitutions,if the Proposal Documents permit substitutions,and shall prepare and distribute addenda identifying approved substitutions to Contractor. § 3.6 CONSTRUCTION PHASE SERVICES § 3.6.1 GENERAL § 3.6.1.1 The Architect shall provide administration of the Contract between the Owner and the Contractor as set forth below and in AIA Document A201TM-2007,General Conditions of the Contract for Construction as modified by Owner,or such other construction contract form as selected by Owner and approved in writing by Architect(the "Construction Contract"). § 3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Architect shall not have control over, charge of,or responsibility for the construction means, methods,techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents.The Architect shall be responsible for the Architect's negligent acts or omissions,but shall not have control over or charge of,and shall not be responsible for,acts or omissions of the Contractor or of any other persons or entities performing portions of the Work. § 3.6.1.3 Subject to Section 4.3,the Architect's responsibility to provide Construction Phase Services commences with the award of the Contract for Construction and terminates on the date the Architect's final Certificate for Payment has been approved by Owner. § 3.6.2 EVALUATIONS OF THE WORK § 3.6.2.1 The Architect shall visit the Site at intervals appropriate to the stage of construction,to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of the Site visits, the Architect shall keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and report to the Owner(1)known deviations from the Contract Documents and from the most recent construction schedule submitted by the Contractor, and (2) defects and deficiencies observed in the Work. Notwithstanding anything in this Agreement to the contrary, the Architect shall be responsible for promptly notifying the Owner of the failure of Contractor,Contractor's subcontractors or any other persons performing any of the Work, to perform the Work in accordance with Contract Documents, including the most recent schedule approved by Owner,to the extent such failure is known,or reasonably should have been known,to Architect. AIA Document B101 T —2007(formerly B161 TO—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Inst. reserved.WARNING:This AIAI Document Is protected by U.S.Copyright Law and International Treaties.Unauthortzed reproduction or distribution 6 of this MAO Document,or any portion of ll,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order No.4204926427_1 which expires on 05/01/2015.and is not for resele. User Notes: (1518488287) § 3.6.2.2 Based on Architect's observations of the Work performed in accordance with Section 3.6.2.1,and upon the recommendations of the other members of the Design Team, the Architect has the authority and responsibility (limited by the standard of care set forth in this Agreement)to reject Work that does not conform to the Contract Documents unless,after consultation in each instance with Owner,Owner directs otherwise. Whenever the Architect considers it necessary or advisable,but subject to the Owner's prior approval,the Architect shall have the authority to require 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 Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the Work. § 3.6.2.3 The Architect shall, in the first instance, interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 3.6.24 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings. When making such initial interpretations and decisions, the Architect shall use reasonable and professional efforts to secure faithful performance by both Owner and Contractor,shall not show partiality to either,and shall not be liable for results of interpretations or decisions rendered in a reasonable,prudent and professional manner. I § 3.6.2.5 The Architect shall render initial decisions on Claims between the Owner and Contractor as provided in the Contract Documents. § 3.6.3 CERTIFICATES FOR PAYMENT TO CONTRACTOR § 3.6.3.1 The Architect shall review and certify the amounts due the Contractor and shall issue certificates in such amounts. The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work as provided in Section 3.6.2, on the evaluations and recommendations of the other members of the Design Team, as applicable, and on the data comprising the Contractor's Application for Payment,that,to the best of the Architect's knowledge, information and belief,the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents and the Contractor is entitled to payment in the amount certified. The foregoing representations are subject to specific qualifications expressed by the Architect. § 3.6.3.2 The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work,(2)reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment,or(4)ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 3.6.3.3 The Architect shall maintain a record of the Applications and Certificates for Payment. § 3.6.4 SUBMITTALS § 3.6.4.1 The Architect shall review the Contractor's submittal schedule and shall not unreasonably delay or withhold approval. The Architect's action in reviewing submittals shall be taker in accordance with the approved submittal schedule or,in the absence of an approved submittal schedule,with reasonable promptness while allowing sufficient time in the Architect's professional judgment to permit adequate review. The schedule will allow for approvals of the other members of the Design Team,when required Architect will use its professional efforts to coordinate with the other members of the Design Team to perform the review and submittal process in a timely manner but will not be responsible for any delays attributable to other members of the Design Team that are not retained by Architect,in connection with the review of submittals. § 3.6.4.2 In accordance with the Architect-approved submittal schedule,the Architect shall review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept AIA Document 6101'm—2007(forrneriy 8161 Tr—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.As rights Inst. reserved.WARNING:This AIAr Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 7 of this AIA0 Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order No.4204926427 1 which expires on 05/01/2015,and is not for resale. User Notes: (1516466287) expressed in the Contract Documents.Review of such submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions,quantities,and installation or performance of equipment or systems,which are the Contractor's responsibility. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. Copies of all final Shop Drawings which have been approved by Architect shall be promptly furnished to the Owner's Representatives (as defined in Section 5.3 below). Shop Drawings and other submittals approved by Architect shall be appropriately stamped and signed by Architect. § 3.6.4.3 If the Contract Documents specifically require the Contractor to provide professional design services or certifications by a design professional related to systems, materials or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy. The Architect shall review shop drawings and other submittals related to the Work designed or certified by the design professional retained by the Contractor that bear such professional's seal and signature when submitted to the Architect.The Architect shall be entitled to rely, in a reasonable and professional manner consistent With the standard of care set forth in Section 2.2, upon the adequacy,accuracy and completeness of the services,certifications and approvals performed or provided by such design professionals. § 3.6.4.4 Subject to the provisions of Section 4.3,the Architect shall review and respond to requests for information about the Contract Documents, and provide copies of all responses to Owner. The Architect shall set forth in the Contract Documents the requirements for requests for information. Requests for information shall include, at a minimum,a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. The Architect's response to such requests shall be made in writing within any time limits agreed upon, or otherwise with reasonable promptness. If appropriate, the Architect shall prepare and issue supplemental Drawings and Specifications in response to requests for information. § 3.6.4.5 The Architect shall maintain a record of submittals and copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. § 3.6.5 CHANGES IN THE WORK § 3.6.5.1 Subject to the Owner's prier approval, Architect may authorize minor changes in the Work that arc consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. Subject to the provisions of Section 4.3,the Architect shall prepare Change Orders and Construction Change Directives for the Owner's approval and execution in accordance with the Contract Documents. § 3.6.5.2 The Architect shall maintain records relative to changes in the Work. § 3.6.6 PROJECT COMPLETION § 3.6.6.1 The Architect shall,after concurring with the Owner,conduct inspections to determine the date or dates of Substantial Completion and the date of final completion;issue Certificates of Substantial Completion;receive from the Contractor and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and assembled by the Contractor; and, after concurring with the Owner, issue a final Certificate for Payment based upon a final inspection indicating the Work complies with the requirements of the Contract Documents. Prior to the issuance of a Certificate of Substantial Completion and prior to the issuance of the final Certificate for Payment,the Architect shall prepare detailed lists of any items,materials and/or systems that require additional work or are otherwise unacceptable or incomplete in a "punch Iist" type format, so that Owner may determine the amount to be withheld from the Contractor until the Work is fully completed and accepted by Owner. § 3.6.6.2 The Architect's inspections shall be conducted with the Owner to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected. § 3.6.6.3 When the Work is found to be substantially complete, the Architect shall inform the Owner about the balance of the Contract Sum remaining to be paid the Contractor, including the amount to be retained from the Contract Sum,if any,for final completion or correction of the Work. AIA Document 8101 TM—2007(formerly B161 TO—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.WI rights Init. reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 8 Of this AIA® Document,or any portion of k,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order NoA204926427_1 which expires on 0 5101 20 1 5,and is not for resale. User Notes: (1516488287) § 3.6.6.4 The Architect shall forward to the Owner the following information received from the Contractor: (l) consent of surety or sureties,if any,to reduction in or partial release of retainage or the making of final payment;(2) affidavits,receipts,releases and waivers of liens or bonds indemnifying the Owner against liens;and(3)any other documentation required of the Contractor under the Contract Documents. § 3.6.6.5 Upon request of the Owner,the Architect shall,without additional compensation,conduct a meeting with the Owner to review the Project. § 3.6.6.6 The Architect will prepare one set of record drawings in both reproducible and electronic format showing all material changes in the Work made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Architect. ARTICLE 4 ADDITIONAL SERVICES § 4.1 Additional Services listed below are not included in Basic Services(except as otherwise required to complete the Basic Services in Article 3 or as otherwise noted below)but may be required for the Project.The Architect shall provide the listed Additional Services only if specifically designated in the table below as the Architect's responsibility,and the Owner shall compensate the Architect as provided in Section 11.2. (Paragraphs deleted) Notwithstanding anything herein to the contrary, preparing or revising Instruments of Service or other documents and data, evaluating Contractor's proposals, or providing other services when such activities are due to improper design,conflicts, negligence,deficiency or any other error or omission of the Architect shall not be considered as Additional Services. Architect's activities due to such causes shall be considered part of the Basic Services of Architect. Additional Services Responsibility Location of Service Description (Architect, Owner (Section 4.2 below or in an exhibit or attached to this document and Not Provided identified below 4.1.1 Programming Basic Service 4.1.2 Multiple preliminary designs 4.1.3 Measured drawings 4.1.4 Existing facilities surveys 4.1.5 Site Evaluation and Planning B203TM-2007 I § 4.1.6 Building information modeling 4.1.7 Civil engineering 4.1.8 Landscape design § 4.1.9 Architectural Interior Design in excess of that required by Article 3(B252Tm-2007) 4.1.10 Valuc Analysis 204TM-2007 4.1.11 Detailed cost estimating II § 4.1.12 Full-time on-site project representation (Row deleted 4.1.13 Conformed construction documents 4.1.14 As-designed record drawings Basic Semoc 4.1.15 As-constructed record drawings Basic Service 4.1.16 Post occupancy evaluation 4.1.17 Facility Support Services B210TK-2007 4.1.18 Tenant-related services I § 4.1.19 Coordination of Owner's consultants ,Basic Savice 4.1.20 Telecommunications/data design § 4.1.21 Security Evaluation and Planning B206TM-2007 4.1.22 Commissioning B211TM-2007 4.1.23 Extensive environmentally responsible design 4.1.24 LEEDO Certification B214TM-2007 AIA Document B101�—2007(formerly 8161 TO—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA' Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 9 of this AIAe Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible t under the law.This document was produced by AIA software at 17:11:27 on 1010212014 under Order NoA204926427 1 which expires on 05/01/2015,and is not for resele. User Notes: (1516468287) 4.1.25 Fast-track desi n services 4.1.26 Historic Preservation B205T"m-2007 § 4.1.27 Furniture,Furnishings,and Equipment Design 253TM-200? § 4.2Insert a description of each Additional Service designated in Section 4.1 as the Architect's responsibility,if not further described in an exhibit attached to this document, § 4.3 Additional Services may be added to the Architect's services hereunder after execution of this Agreement, without invalidating the Agreement. Except fvr services required due to the fault of the Architect, any Additional Services provided in accordance with this Section 4.3 shall entitle the Architect to compensation pursuant to Section 11.3 and an appropriate adjustment in the Architect's schedule. § 4.3.1 Upon recognizing the need to perform the following Additional Services, the Architect shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Architect shall not proceed to provide the following Additional Services until the Architect receives the Owner's written authorization: .1 Services necessitated by a change in the Initial Information,previous instructions or approvals given by the Owner, or a material change in the Project including, but not limited to, size, quality, complexity, the Owner's schedule or budget for Cost of the Work, or procurement or delivery method; .2 Services necessitated by the Owner's request for extensive environmentally responsible design alternatives,such as unique system designs,in-depth material research,energy modeling,or LEED® certification; 3 Changing or editing previously prepared Instruments of Service necessitated by the enactment or revision of codes, laws or regulations or official interpretations, that were not reasonably anticipatable by Architect through the application of the standard of care set forth above; .4 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner's consultants or contractors; .5 Preparing digital data for transmission to the Owner's other consultants and contractors,or to other Owner authorized recipients,not including data transmitted during the normal course of Architect's services,such as email communications; .6 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner that were not included in the original bid or negotiation process; .7 Preparation for,and attendance at,a public presentation,meeting or hearing other than as required to complete the Basic Services; .8 Preparation for,and attendance at a dispute resolution proceeding or legal proceeding,except where the Architect is a party thereto; .9 Evaluation of the qualifications of bidders or persons providing proposals; .10 Consultation concerning replacement of Work resulting from fire or other casualty during construction;or .11 Assistance to the Initial Decision Maker,if other than the Architect. § 4.3.2 To avoid delay in the Construction Phase, the Architect shall provide the following Additional Services, notify the Owner with reasonable promptness,and explain the facts and circumstances giving rise to the need. If the Owner subsequently determines that all or parts of those services are not required, the Owner shall give prompt written notice to the Architect,and the Owner shall have no further obligation to compensate the Architect for those services: I 1 Reviewing a Contractor's submittal out of sequence from the submittal schedule agreed to by the Architect;or 2 (Paragraphs deleled) AIA Document B101 TM—2007(formerly B161 TO—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights inIL reserved.WARNING:This AIAO Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 10 of this AIA® Document,or any portion of It,may result In severe civil and criminal penattles,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under order No.4204926427_1 which expires on 06/0112015,and Is not for resale. User Notes: (1518488287) Following the approval of the Construction Documents by Owner, making subsequent revisions to Instruments of Service resulting from substitutions proposed by the Contractor that are accepted by Owner. § 4.3.3 (Paragraphs deleted) If the services covered by this Agreement have not been completed within twelve (12) months of the date of this Agreement, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as Additional Services. (Paragraph deleted) ARTICLE 5 OWNER'S RESPONSIBILITIES § 5.1 Unless otherwise provided for under this Agreement,the Owner shall provide information in a timely manner regardingrequirements for and limitations on the Project. § 5.2 The Owner shall establish and periodically update the Owner's budget for the Project,including(1)the budget for the Cost of the Work as defined in Section 6.1; (2)the Owner's other costs; and, (3)reasonable contingencies related to all of these costs.if the Owner significantly increases or decreases the Owner's budget for the Cost of the Work,the Owner shall notify the Architect. The Owner and the Architect shall thereafter agree to a corresponding change in the Project's scope and quality. § 5.3 The Owner shall identify a representative authorized to act on the Owner's behalf with respect to the Project ("Owner's Representative").The Owner shall render decisions and approve the Architect's submittals in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. The Projects Group, LLC is hereby designated as "Owner's Representative" with respect to the Project; provided, however, that Owner may at any time designate another party as Owner's Representative. Copies of all correspondence and communication from Architect to Owner must be provided to the Owner's Representative. § 5.4 The Owner shall furnish surveys to describe physical characteristics,legal limitations and utility locations for the site of the Project,and a written legal description of the site,when reasonably necessary for Architect to perform its services under this Agreement. § 5.5 When reasonably required fbr Architect to perform its services under this Agreement, Owner shall furnish services of geotechnical engineers,which may include but are not limited to test borings,test pits,determinations of soil bearing values,percolation tests,evaluations of hazardous materials,seismic evaluation,ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations. § 5.6 As part of Basic Services hereunder, Architect shall coordinate the services of the other members of the Design Team with those services provided by the Architect. Upon the Architect's request,the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants.The Owner shall furnish the services of consultants other than those designated in this Agreement, or authorize the Architect to furnish them as an Additional Service, when the Architect requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants maintain professional liability insurance as appropriate to the services provided in Owner's discretion. I § 5.7 Except when such services are to be provided by Architect as part of its services hereunder,the Owner shall furnish tests,inspections and reports required by law or the Contract Documents approved by Owner. § 5.8 The Owner shall furnish all legal,insurance and accounting services,including auditing services,that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests, as determined by the Owner in its sole discretion. § 5.9 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Architect's Instruments of Service or nonconformance with the Contract Documents; provided, however, this section shall apply only to the Owner's AIA Document B101*"—2007(formerly 8151*■—1997).Copydght O 1974,1978,1997,1997 and 2007 by The Amedcan Inalitute of Architects.AA rights Init. reserved.WARNING:This AIA' Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution of this AIAr' Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible t under the low.This document was produced by AW software at 17:11:27 on 1 010 2/2 01 4 under Order No.4204928427 1 which expires on 05/01/2015,and is not for resale. User Notes: (1510400207) I actual knowledge of any fault or defect and shall not impose any obligation on Owner to inspect the Project for any faults or defects. § 5.10 Except as otherwise provided in this Agreement, or when direct communications have been specially authorized,the Owner shall endeavor to communicate with the Contractor and the Architect's consultants through the Architect about matters arising out of or relating to the Contract Documents;provided,hovvever,that Owner may instruct,correspond,or negotiate with Contractor directly and in such event shall forward a copy of any writing to Architect and shall advise Architect of any significant instruction,correspondence or negotiation. Architect shall be afforded an opportunity to attend any formal discussions directly between Owner and Contractor,if reasonably related to Architect's services under this Agreement. § 5.11 Before executing the Contract for Construction, the Owner shall use commercially reasonable efforts to coordinate the Architect's duties and responsibilities set forth in the Contract for Construction with the Architect's services set forth in this Agreement. The Owner shall provide the Architect a copy of the executed agreement between the Owner and Contractor. § 5.12 The Owner shall provide the Architect access to the Project site prior to commencement of the Work and shall obligate the Contractor to provide the Architect access to the Work wherever it is in preparation or progress. ARTICLE 6 COST OF THE WORK § 6.1 For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed by the Architect and shall include the Contractor's general conditions costs, overhead and profit.The Cost of the Work does not include the compensation of the Architect,the costs of the land, rights-of-way, financing, impact or permit foes, development bonds, contingencies for changes in the Work or similar costs that are the responsibility of the Owner. § 6.2 The Owner's budget for the Cost of the Work is provided in Initial Information, and may be adjusted throughout the Project as required under Sections 5.2,6.4 and 6.5.Architect's evaluations of the Owner's budget for the Cost of the Work, the preliminary estimate of the Cost of the Work and updated estimates of the Cost of the Work prepared by the Contractor, represent the Architect's professional judgment as a design professional. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment; the Contractor's methods of determining bid prices; or competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's budget for the Cost of the Work or from any estimate of the Cost of the Work or evaluation prepared or agreed to by the Architect. § 6.3 Estimates of the Cost of the Work will be prepared by Contractor (or another construction cost estimator retained by the Owner at Owner's discretion). The Owner, Architect, and Contractor will meet to evaluate Contractor's estimates of the Cost of the Work at the end of the Design Development and Construction Document Phases and adjust the design or the budget as necessary to meet the Owner's requirements for the Project prior to proceeding with each subsequent design phase. As part of Architect's Basic Services, Architect will coordinate and consult with Contractor to reconcile any differences in the estimates prepared by Contractor and Owner's budget for the Cost of the Work. In preparing estimates of the Cost of Work,the Contractor shall be permitted to include reasonable contingencies for design, bidding and price escalation. The Architect will be permitted to determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents;to make reasonable adjustments in the program and scope of the Project;and to include in the Contract Documents alternate bids as may be necessary to adjust the estimated Cost of the Work to meet the Owner's budget for the Cost of the Work. The estimate of the Cost of the Work may be based on current area, volume or similar conceptual estimating techniques until actual construction estimates or bids are provided or obtained by the Contractor. § 6.4 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, through no fault of the Architect, the Owner's budget for the Cost of the Work shall be adjusted to reflect changes in the general level of prices in the applicable construction market if reasonably necessary. AIA Document 1111101"-2007(formerly B161"'—1997).Copydght O 1974.1978,1987.1997 and 2007 by The Amerlcan Institute of Architects.AN rights Init. reserved.WARNING:This AIAlt Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 12 of this AIA11 Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 1 010 2/2 01 4 under Order No.4204926427_11 which expires on 0510112015,and Is not for resale User Notes: (1516466287) § 6.51f at any time the Contractor's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work,the Architect,with the assistance of the Contractor,shall make appropriate recommendations to the Owner to adjust the Project's size, quality or budget for the Cost of the Work, and the Owner shall cooperate with the Architect in making such adjustments. § 6.6 If the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services is exceeded by the lowest bona fide bid or negotiated proposal(or the Contractor's guaranteed maximum or lump sum price),the Owner shall A give written approval of an increase in the budget for the Cost of the Work; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 9.5; ,4 in consultation with the Architect and Contractor, revise the Project program, scope, or quality as required to reduce the Cost of the Work;or .5 implement any other mutually acceptable alternative. § 6.7 If the Owner chooses to proceed under Section 6.6.4, the Architect, without additional compensation, shall modify the Construction Documents as necessary to comply with the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services, or the budget as adjusted under Section 6.6.1. The Architect's modification of the Construction Documents shall be the limit of the Architect's responsibility under this Article 6. ARTICLE 7 COPYRIGHTS AND LICENSES § 7.1 The Architect and the Owner warrant that in transmitting Instruments of Service,or any other information,the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. If the Owner and Architect intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions. § 7.2 Notwithstanding anything to the contrary, all right, title, and interest in and to the architectural designs and drawings, including the Drawings and Specifications, other documents, and any other materials or tangible or intangible work product of any kind whatsoever related to the Project (and all products thereof) (collectively, "Instruments of Service") created by Architect or any parties engaged by Architect or otherwise furnished by Architect or any parties engaged by Architect are and shall remain the sole and exclusive property of Owner. Architect hereby irrevocably grants,sells,assigns,and conveys to Owner all of Architect's right,title,and interest in and to the Instruments of Service,together with all common law,statutory and other rights relating thereto(in any and all media now existing or hereafter devised [and in any and all languages]), including, without limitation, all copyrights and trademarks(and any extensions or renewals thereof)or any economic,rental or lending rights to the Instruments of Service(and any products thereof). All written materials,records and other documents coming into the possession of Architect in connection with the performance of the Architects services hereunder will be and remain the sole and exclusive property of Owner. Upon termination of this Agreement for any reason, Architect agrees to promptly deliver to Owner the originals and all copies of all books, permits, plans, records, licenses, contracts,computer software and disks and all other documents and information pertaining to its services hereunder. § 7.3 Architect will not utilize any of the unique or distinctive design/engineering components or effects incorporated into or belonging to the Project independently in any other project, nor will Architect utilize any such components or effects in any combination which would produce a project with substantially similar unique or distinctive features, without Owner's prior written permission, it being understood and agreed that all proprietary rights in and to the design and engineering of the Project and its components will belong to Owner. § 7.3.1 In the event the Owner uses the Instruments of Service in a manner not contemplated in this Agreement without retaining the author of the Instruments of Service, the Owner releases the Architect and Architect's consultant(s)from all claims and causes of action arising from such uses.The Owner,to the extent permitted by law, further agrees to indemnify and hold harmless the Architect and its consultants from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the Owner's use of the Instruments of Service under this Section 7.3.1. The terms of this Section 7.3.1 shall not apply if the Owner rightfully terminates this Agreement for cause under Section 9.4. AIA Document B101 m—2007(formerly B161 m—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIM Document Is protected by U.S.Copyright Law and International Trestles.Unauthorized reproduction or distribution 13 of this AIA® Documsrrt,or any portion of lt,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA sdtware at 17:11:27 on 10102/204 under Order No.4204926427_1 which expires on 05/0112015,and is not for resale. User Notes: (1516466287) § 7.4 Architect will retain all information furnished by or belonging to the Owner in strictest confidence and will neither use it nor disclose it to anyone without the express written consent of the Owner (except to the extent necessary to perform the Architect's services hereunder). Architect will not release any information relative to the Project for publication,advertising or any other purpose without Owner's prior written consent. In connection with publications and Architect's advertising material,with the prior written consent of the Owner,Architect can claim credit for being the Architect of Record of the Project. ARTICLE 8 CLAIMS AND DISPUTES § 8.1 GENERAL § 8.1.1 The Owner and Architect shall commence all claims and causes of action, whether in contract, tort, or otherwise,against the other arising out of or related to this Agreement in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by applicable law.The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section 8.1.1. § 8.1.2 To the extent damages are covered by property insurance,the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in the Construction Contract.The Owner or the Architect, as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein. (Paragraph deleted) § 8.2 MEDIATION § 8.2.1 Any claim,dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to binding dispute resolution. If such matter relates to or is the subject of a lien arising out of the Architect's services,the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or by binding dispute resolution. § 8.2.2 The Owner and Architect shall endeavor to resolve claims,disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement.A request for mediation shall be made in writing,delivered to the other party to the Agreement,and filed with the person or entity administering the mediation.The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but,in such event,mediation shall proceed in advance of binding dispute resolution proceedings,which shall be stayed pending mediation for a period of 60 days from the date of filing,unless stayed for a longer period by agreement of the parties or court order. § 8.2.3 The parties shall share the mediator's fee and any filing fees equally.The mediation shall be held in the place where the Project is located,unless another location is mutually agreed upon.Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2,the method of binding dispute resolution shall be (Paragraphs deleted) Litigation in a court of competent jurisdiction. (Paragraphs deleted) ARTICLE 9 TERMINATION OR SUSPENSION § 9.1 If the Owner fails to make payments to the Architect in accordance with this Agreement,such failure shall be considered substantial nonperformance and cause for termination or,at the Architect's option,cause for suspension of performance of services under this Agreement. If the Architect elects to terminate or suspend services, the Architect shall give seven days' written notice to the Owner and opportunity to cure before terminating this Agreement or suspending services. In the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all sums due prior to suspension and expenses reasonably incurred in the interruption and resumption of the Architect's services.The Architect's fees for the remaining services and the time schedules shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Architect's services. AIA Document 8101 1"—2007(formerly 9151>r—1887).Copyright O 1974,1978,1987,1897 and 2007 by The American Institute of Architects.All rights Ink. reserved.WARNING:This AIAe Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 14 of this AIAe Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible t under the law.This document was produced by AIA software at 17:11:27 on 10)(12/20141 under Order NoA204926427 1 which expires on 05101/2015,and is not for meal&. User Notes: (1516468287) § 9.2 If the Owner suspends the Project for more than sixty (60) consecutive days, the Architect shall be compensated for services performed prier to notice of such suspension.When the Project is resumed,the Architect shall be compensated for expenses reasonably incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Architect's services. § 9.3 If the Owner suspends the Project for more than 90 consecutive days for reasons other than the fault of the Architect,the Architect may terminate this Agreement by giving not less than seven days'written notice. § 9.4 Either party may terminate this Agreement upon not less than seven days' written notice and opportunity to cure should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. § 9.5 The Owner,in its sole discretion,may terminate this Agreement upon not less than seven days'written notice to the Architect for the Owner's convenience and without cause. § 9.6 In the event of termination for the convenience of Owner pursuant to Section 9.5 above,the Architect shall,as its sole and exclusive remedy, be compensated for services performed prior to termination, together with Reimbursable Expenses then due and all Termination Expenses as defined in Section 9.7. Owner will not be responsible for the loss of anticipated profits with regard to Services that will not be performed as a result of a termination of this Agreement or any portion of the Services. § 9.7 Termination Expenses are in addition to compensation for the Architect's services and include only those expenses directly attributable to termination for which the Architect is not otherwise compensated, including reasonable demobilization and cancellation charges of outside consultants and subcontractors. Termination Expenses shall be due and payable at the time of the orderly and organized delivery by Architect to Owner of all documents,designs and other property of Owner in Architect's possession relating to the Project(including,without limitation,the Drawings,Specifications and other documents prepared by Architect). § 9.8 Except as otherwise specified in this Agreement,the rights and remedies provided for under this Agreement are in addition to any other rights and remedies provided under applicable law or in equity, and shall survive the termination of this Agreement. ARTICLE 10 MISCELLANEOUS PROVISIONS § 10.1 This Agreement shall be governed by the law of the State of Texas. Venue of any action under this Agreement shall be in the state courts of Tarrant County, Texas, it being understood that this Agreement is performable in said county. § 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A201-2007, General Conditions of the Contract for Construction, or in documents substituted for such General Conditions pursuant to Section 3.6.1.1, as such General Conditions or substitution documents are modified by Owner (subject to the approval of Architect,which approval shall not be unreasonably withheld). § 10.3 The Owner and Architect,respectively,bind themselves,their agents,successors,permitted assigns and legal representatives to this Agreement.The Architect shall not assign this Agreement without the written consent of the Owner. The Owner may assign this Agreement in its sole discretion. § 10.4 If the Owner requests the Architect or Architect's consultants to executc certificates,the proposed language of such certificates shall be submitted to the Architect for review at least 7 days prior to the requested dates of execution.If the Owner requests the Architect to execute consents reasonably required to facilitate assignment to a lender,the Architect shall execute all such consents that are consistent with this Agreement,provided the proposed consent is submitted to the Architect for review at least 7 days prior to execution.The Architect shall not be required to execute certificates or consents that would require knowledge,services or responsibilities beyond the scope of this Agreement. The Architect's approval of the form of such certificates or consents will not be unreasonably withheld. AIA Document B101"'—2007(formerly B161 ie—1987).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.wARN1NG:This AIA° Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 15 of this AIAs Document,or any portion of it,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 1010212014 under Order No.4204926427_1 which expires on 05!012015,and is not for resale. User Notes: (1516488287) § 10.5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect. The relationship between Architect and Owner created by this Agreement is that of independent contractor,and is in no event to be construed as that of employer-employee or any other relationship. § 10.6 Unless otherwise required in this Agreement, the Architect shall have no responsibility for the discovery, presence,handling,removal or disposal of,or exposure of persons to,hazardous materials or toxic substances in any form at the Project site. The Architect shall promptly notify Owner if any hazardous materials are discovered. Under no circumstances will the Architect specify the use of asbestos containing materials in the Project, or allow the specification of such materials by its consultants. § 10.7 The Architect may,subject to the prior written approval of Owner given in Owner's sole discretion,have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project during normal business hours with advance written approval of Owner at times approved by Owner to make such representations. However, the Architect's materials shall not include the Owner's confidential or proprietary information.The Owner shall provide professional credit for the Architect in the Owner's promotional materials for the Project. § 10.6 The Owner's approval,acceptance,use of or payment for all or any part of the Architect's services hereunder, or of the Project itself,shall in no way alter or diminish the Architect's obligations or the Owner's rights hereunder. No provision of this Agreement shall be deemed to have been waived unless such waiver shall be in writing,signed by both Owner and Architect. Whenever Owner's approval is provided for under this Agreement,such approval shall be effective only if it is given in advance and in writing. §10.9 If any provision of this Agreement or the application thereof to any person or circumstance shall to any extent be held void or invalid,then the remainder of this Agreement or the application of such provision to persons or circumstances other than those as to which it is held void or invalid shall not be affected thereby,and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. § 10.10 If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys'fees and other costs allowed by law. §10.11 All section headings herein are for convenience of reference only and are not part of this Agreement,and no construction or inference shall be derived therefrom.Wherever required by the context,any gender shall include the other gender,the singular shall include the plural,and the plural shall include the singular.Each defined tem herein may be used in its singular or plural form whether or not so defined. §10.12 All notices to be given hereunder shall be in writing,and may be given,served or made(1)by depositing the same in the United States mail addressed as set forth below,postage prepaid and registered or entified with return receipt requested,(2)by depositing the same for overnight delivery(pre-paid by or billed to the party giving notice) with Federal Express or other nationally recognized overnight delivery service addressed as set forth below,(3)by transmitting the same via telecopy through a confirmed and authorized telecopy number of the indicated addressee, or(4)by delivering the same in person to the indicated addressee. Notice deposited in the mail in accordance with the provisions hereof shall be effective from and after the fourth(4th)day next following the date postmarked on the envelope containing such notice,or when actually received,whichever is earlier.Notice given in any other manner shall be effective only if and when received by the party to be notified.By giving the other parties at least seven(7) days'written notice thereof,the parties hereto shall have the right to change their respective addresses and specify as their respective addresses for the purposes hereof any other address in the United States of America. If to Owner: Fort Worth Garden Club,Inc., c/o The Projects Group 420 Throckmorton,Suite 910 Fort Worth,Texas 76102 Attention:Leah Gilbert If to Architect: Bennett Benner Partners AIA Document 8101 —2007(formerly B161*a—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American institute of Architects.All rights Init. reserved.WARNING:This AIAr' Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 16 of this AIAe Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10102/2014 under order NoA204928427_1 which expires on 06/01/2015,and is not for resale. User Notes: (1516486287) 500 West 71'Street,Suite 1400 Fort Worth,Texas 76102 Attention:R.Gannon Gries AIA Telephone:(817)3354991 §10.13 The Architect shall provide all documents,reports and other information requested by Owner's lender(s)(if any),and shall cooperate with such lender(s)to the fullest extent possible. ARTICLE 11 COMPENSATION § 11.1 For the Architect's Basic Services described under Article 3,the Owner shall compensate the Architect as follows: The stipulated sum of Fifty Seven Thousand Seven Hundred Fifty and No/100 Dollars ($57,750.00) allocated among the components in accordance with Architect's proposal and among the phases as shown below. I § 11.2 For Additional Services that may arise during the course of the Project,including those under Section 4.3,the Owner shall compensate the Architect as follows: Hourly,based on the rates attached as Exhibit"C"hereto. § 11.3 Compensation for Additional Services of the Architect's consultants when not included in Section 11.2 or l 1.3,shall be the amount invoiced to the Architect: § 11.4 Where compensation for Basic Services is based on a stipulated sum or percentage of the Cost of the Work, the compensation fix each phase of services shall be as follows: Construction Documents / $30,000.00 Bidding or Negotiation Phase Construction Phase $Z7,750.00 Total Basic Compensation $57,750.00 § 11.5 When compensation is based on a percentage of the Cost of the Work and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable only to the extent services are performed on those portions in phases authorized by the Owner, and in accordance with the schedule set forth in Section 11.4 based on(1)the lowest bona fide bid or negotiated proposal,or(2)if no such bid or proposal is received, the most recent estimate of the Cost of the Work for such portions of the Project. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed in each phase that was authorized by the Owner,whether or not the Construction Phase is commenced. (Table deleted) § 11.6 The hourly billing rates for services of the Architect and the Architect's consultants, if any, are set forth below. The rates shall be adjusted in accordance with the Architect's and Architect's consultants' normal review practices and subject to Owner's approval,which will not be unreasonably withheld. See Exhibit"C"hereto. (Table deleted) (Paragraphs deleted § 11.8 COMPENSATION FOR REIMBURSABLE EXPENSES § 11.8.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include reasonable, documented expenses incurred by the Architect and the Architect's consultants directly related to the Project,as follows: .1 Transportation in connection with the Project(outside the metropolitan area in which the Architect's offices are located)and authorized out-of-town travel and subsistence(outside the metropolitan area in which the Architect's offices are located),no first class travel permitted; AIA Document B101"'-2007(formerly 121151^—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Ink. reserved.WARNING:This AIAO Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 17 of this AIAe Docurnerd,or any portion of It,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible t under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order No.4204928427_1 which expires on 05/0112015,and Is not for resale. User Notes: (1518488287) 2 Long distance services, dedicated data and communication services, teleconferences, Project Web sites (if included in the Architect's services hereunder), and extranets, each as authorized and approved by the Owner; .3 Fees paid for securing approval of authorities having jurisdiction over the Project; .4 Printing,reproductions,plots,standard form documents; .5 Postage,handling and delivery; .6 Expense of overtime work requiring higher than regular rates,if authorized in advance by the Owner; .7 Renderings, models, mock-ups, professional photography, and presentation materials requested by the Owner; .8 Architect's Consultant's expense of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits if the Owner requests such insurance in excess of that required under this Agreement; .9 All taxes levied on professional services and on reimbursable expenses; ,10 Site office expenses;and .11 Other similar Project-related expenditures approved by the Owner. I § 11.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect's consultants. §11.8.3 Reimbursable Expenses payable to Architect by Owner in oonnection with the Architect's performance of Basic Services are estimated not to exceed the sum of Five Hundred and No/]00 Dollars ($500.00), and will not exceed such amount without the prior written approval of Owner. § 11.9 (Paragraphs deleted) INTENTIONALLY DELETED § 11.10 PAYMENTS TO THE ARCHITECT § 11.10.1 An initial payment of N/A shall be made upon execution of this Agreement and is the minimum payment under this Agreement.It shall be credited to the Owner's account on the first invoice,with any remainder credited to subsequent invoices. § 11.10.2 Unless otherwise agreed, payments for services shall be made monthly in proportion to services performed.Payments are due and payable as follows: Invoices received by Owner on or before the 25th day of the month shall be due on,and the Owner shall make payments directly to the Architect by the 30th day of the following month, provided that Owner has received and approved the following documents with respect to the invoices submitted at the time: (1) the Architect's monthly statement of services rendered and expenses incurred, (2) lien waivers and releases,and(3)other documents as may be reasonably required by Owner. All such documents must be in a form acceptable to Owner. Amounts remaining unpaid sixty(60)days after the due date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (Paragraph deleted) In accordance with the provisions of Chapter 2251 of the Texas Government Code. § 11,10.3 The Owner shall not withhold amounts from the Architect's compensation to impose a penalty or liquidated damages on the Architect,or to offset sums requested by or paid to contractors for the cost of changes in the Work unless the Architect is legally responsible as a result of a breach under this Agreement; provided that Owner may offset against any sums due Architect under this Agreement the amount of any obligations of Architect to Owner. § 11.10.4 Architect shall maintain,during the term of this Agreement and continuing for a period of three(3)years after the completion of the Project, its internal books and records pertaining to the costs of Basic Services and Additional Services (to the extent not provided on a lump sum basis), and Reimbursable Expenses, in sufficient detail and condition and in accordance with generally accepted accounting principles applied on a consistent basis so as to permit convenient periodic audits of such books and records by Owner or Owner's authorized representative at times and places mutually agreed upon by Owner and Architect, so that Owner may verify any or all invoices submitted by Architect.In addition,receipts will be attached to ail billings for Reimbursable Expenses for items that AIA Document 81011"—2007(formerly 8151111—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights InIL reserved.WARNING:This AIA, Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 78 of this AIAO Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible t under the law.This document was produced by AIA software at 17:11:27 on 100=`141 under Order No.4204928427_1 which expires on 05101=15,and is not for resale. User Notes: (1518488287) exceed Twenty-Five and No/100 Dollars($25.00),except for in-house charges(reproduction,copies,eta)which are to be clearly supported by Architect's internal cost records and available for review by Owner. § 11.10.5 FINAL PAYMENT The acceptance of final payment by Architect shall constitute a waiver of all claims by Architect except those previously made in writing and identified by Architect as unsettled on Architect's final invoice for payment. ARTICLE 12 SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement are as fellows: §12.1 INDEMNIFICATION,ASSUMPTION OF RISK AND WAIVER OF LIABILITY §12.1.1 INDEMNIFICATION §12.1.1.1 TO THE FULLEST EXTENT PERMITTED BY LAW,ARCHITECT SHALL INDEMNIFY,DEFEND(AS LIMITED IN 12.1.1.2 BELOW) AND HOLD HARMLESS OWNER, OWNER'S REPRESENTATIVES, CITY OF FORT WORTH, AND LENDERS (IF ANY), AND EACH OF THE AFOREMENTIONED PARTIES' AFFILIATED COMPANIES, PARTNERS, MEMBERS, MANAGERS, SUCCESSORS, ASSIGNS, HEIRS, LEGAL REPRESENTATIVES, DEVISEES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, "INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS AND LIABILITIES(INCLUDING,WITHOUT LIMITATION,CLAIMS AND LIABILITIES RELATING TO BODILY INJURY OR PROPERTY DAMAGE), ARISING OUT OF NEGLIGENCE OR MISCONDUCT OF ARCHITECT OR ARCHITECT'S OFFICERS, AGENTS, EMPLOYEES, OR SUBCONTRACTORS; PROVIDED, HOWEVER, THAT WITH RESPECT TO PROFESSIONAL LIABILITY,ARCHITECT'S OBLIGATION TO INDEMNIFY THE INDEMNITEES SHALL APPLY ONLY TO THOSE CLAIMS OR LIABILITIES RESULTING FROM ERRORS, OMISSIONS OR NEGLIGENT ACTS OF ARCHITECT OR ARCHITECT'S OFFICERS,AGENTS,EMPLOYEES OR SUBCONTRACTORS(COLLECTIVELY, "INDEMNIFIED OBLIGATIONS"). THIS INDEMNIFICATION SHALL NOT BE LIMITED TO DAMAGES,COMPENSATION OR BENEFITS PAYABLE UNDER INSURANCE POLICIES,WORKERS'COMPENSATION ACTS,DISABILITY BENEFIT ACTS OR OTHER EMPLOYEES'BENEFIT ACTS. § 12.1.1.2 ARCHITECT'S OBLIGATION TO DEFEND THE INDEMNITEES SHALL BE LIMITED TO THE INDEMNIFIED OBLIGATIONS SPECIFIED ABOVE ONLY, PROVIDED HOWEVER, WITH RESPECT TO PROFESSIONAL LIABILITY CLAIMS, ARCHITECT'S OBLIGATION TO DEFEND THE INDEMNITEES SHALL BE FURTHER LIMITED TO THE DEFENSE,,IF ANY,PROVIDED BY THE ARCHITECT'S PROFESSIONAL LIABILITY INSURANCE CARRIER UNDER THE TERMS OF ITS POLICY (COLLECTIVELY, "DEFENSE OBLIGATIONS"). IF A CLAIM REGARDING PROFESSIONAL LIABILITY IS MADE INVOLVING BOTH DEFENSE OBLIGATIONS AND OTHER OBLIGATIONS THAT ARE NOT INCLUDED IN THE DEFENSE OBLIGATIONS,TILE ARCHITECT'S DUTY TO DEFEND IS EXPRESSLY LIMITED TO THE DEFENSE OBLIGATIONS. § 12.1.1.3 IN THE EVENT OF CLAIMS THAT ARE NOT DEFENSE OBLIGATIONS, HUT ARCHITECT IS ULTIMATELY FOUND BY A COURT OF COMPETENT JURISDICTION TO BE NEGLIGENT IN CONNECTION WITH ANY SUCH CLAIM(S), ARCHITECT SHALL REIMBURSE THE INDEMNITEES FOR ALL DEFENSE COSTS ASSOCIATED WITH SUCH CLAIMS TO THE PERCENTAGE OF LIABILITY ADJUDGED AGAINST ARCHITECT. §12.1.2 ASSUMPTION OF RISK AND WAIVER OF LIABILITY Notwithstanding anything in this Agreement to the contrary, Architect understands and expressly agrees to the following: .1 The site where the Project to which the Services relate is being constructed(the"Site"),being the location of a construction project, poses potential risks to the health, safety, and well-being of Architect's employees that do not exist in the ordinary workplace. Architect therefore assumes all risks involved with the Services, including any risk of personal or bodily injury to its employees, or any risk to the personal property of Architect or its employees, and Architect waives and relinquishes, covenants not to sue, and fully releases and forever discharges the Indemnitees from any and all claims that Architect or its employees, may have against the Indemnitees,which may arise as a result of or in connection with any of the activities of Architect or its employees,on or around the Site("Personal Claims"),even if such Personal Claims may be caused by or attributed, in whole or in part,to the negligence of any Indemnitee. Architect will use reasonable efforts to obtain a similar waiver from its Subcontractors. AIA Document 8101^M—2007(formerly 8161 Is—1997).Copyright O 1974,197a,1987,1997 and 2007 by The American Institute d Architects.AN rights Inst. reserved WARNING:This AIA° Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 19 01 this MAO Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible / under the law.This document was produced by ALA software at 17:11:27 on 10/02/2014 under Order No.4204926427 1 which expires on 05101/2015,and Is rat for resale. User Notes: (1516488287) .2 Architect will cause each and every employee of Architect, and will use reasonable efforts to cause the employees of its Subcontractors,to read and execute the Release and Waiver of Liability attached hereto as Exhibit"B" ("Release")and provide a copy of each executed Release to the Owner prior to such employee entering the Site for any reason whatsoever during the term of this Agreement. Notwithstanding the foregoing,the provision o$or failure to provide,any executed Release to the Owner will not imply any responsibility on Owner to obtain any such Release or in any way operate to relieve Architect of its obligations hereunder. §12.1.3 LEGAL LIMITATIONS It is expressly agreed that with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification,assumption of risk or waiver of liability set out in this Section 12.1,that such legal limitations are made a part of the indemnification,assumption of risk or waiver of liability and shall operate to amend the indemnification,assumption of risk or waiver of liability to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and so modified, the indemnification, assumption of risk or waiver of liability shall continue in full force and effect. §12.2 ARCHITECTS INSURANCE Architect shall, at its sole expense, maintain in effect at all times during the full term of its services under this Agreement and as otherwise required hereunder,insurance coverages with limits not less than those set forth below with insurers licensed to do business in the State of Texas and acceptable to Owner and under forms of policies satisfactory to Owner. None of the requirements contained herein as to types, limits or Owner's approval of insurance coverage to be maintained by Architect are intended to and shall not in any manner limit, qualify or quantify the liabilities and obligations assumed by Architect under this Agreement or otherwise provided by law. .1 Commercial General Liability(Occurrence Basis). Bodily injury/ $1,000,000 each occurrence,or equivalent,subject to a Property Damage $1,000,000 aggregate applicable to the Project. This policy shall be on a form acceptable to Owner, endorsed to include the Indemnitees (as defined in this Agreement) as additional insureds by endorsement form CG 20 26 11/85 or its equivalent, contain cross-liability and severability of interest endorsements, state that this insurance is primary insurance as regards any other insurance carried by any Indemnitee,and shall include the following coverages: (a) Premises/Operations; (b) Independent Contractors; (c) Completed Operations for a period of two years following the date of the final completion of the construction of the Work that is performed in accordance with the services of this Agreement; (d) Broad Form Contractual Liability specifically in support of but not limited to, the Indemnity sections of this Agreement; (e) Broad Form Property Damage;and (f) Personal Injury Liability with employee and contractual exclusions removed. .2 Comprehensive Automobile Liability Bodily Injury/Property Damage $1,000,000 combined single limit per occurrence. 'Mis policy shall be on a standard form written to cover all owned, hired and non-owned automobiles. The policy shall be endorsed to include the Indemnitees as additional insureds, contain cross-liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by any Indemnitee. AIA Documant 13101 —2007(formerly 13161"'—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Inalitute of Architects.All rights InIt. nerved.WARNING:This AIAm Document is protected by U.S.Copyright Law and International Trestles.Unauthorized reproduction or distribution 20 of this AIAe Document,or any portion of it,may result In seven civil and criminal penalties,and will be prosecuted to the maximum extent possible under the low.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order NoA204928427 1 which expires on Oti/01/2013,and Is not for resale. User Notes: (151e488287) 4 .3 Workers'Compensation Workers'Compensation Statutory Limits Employer's Liability $1,000,000 This policy shall include a Waiver of Subrogation in favor of the Indemnitees. .4 Umbrella Excess Liability Insurance(Occurrence Basis) Bodily Injury/ $5,000,000 per occurrence, Property Damage $5,000,000 aggregate. This policy shall be written on a following form umbrella excess basis above the coverages described in clauses 1, 2, and 3 above, and shall be endorsed to include the Indemnitees as additional insureds. .5 Professional Liability Architect agrees to provide and maintain,at its expense,a Professional Liability Insurance Policy of$2,000,000 for a period not less than two(2)years after the date of the final completion of the construction of the Work that is performed in accordance with the services of this Agreement. Architect shall provide Owner with a copy of the terms and conditions of the policy providing Professional Liability coverage. .6 Architect's Equipment Policy Any such insurance policy covering Architect's or its outside consultant's or subcontractor's equipment against loss by physical damage shall include an endorsement waiving the insurer's right of subrogation against the Indemnitees. Such insurance shall be Architect's and outside consultant's and subcontractor's sole and complete means of recovery for any such loss. SHOULD ARCHITECT OR ANY OUTSIDE CONSULTANT OR SUBCONTRACTOR CHOOSE TO SELF INSURE THIS RISK, IT IS EXPRESSLY AGREED THAT THE ARCHITECT AND THE OUTSIDE CONSULTANT AND SUBCONTRACTOR HEREBY WAIVE ANY CLAIM FOR DAMAGE OR LOSS TO SAID EQUIPMENT IN FAVOR OF THE INDEMNITEES,EVEN IF SUCH DAMAGE OR LOSS ARISES FROM OR IS ATTRIBUTED TO THE SOLE OR CONCURRENT NEGLIGENCE OF ANY INDEMNITEE. .7 Additional Provisions Evidence of the insurance coverage required to be maintained by Architect under this Section 2.5, represented by Certificates of Insurance issued by the insurance carrier(s), must be furnished to Owner prior to Architect starting its services hereunder.Certificates of Insurance shall specify the additional insured status mentioned above as well as the waivers of subrogation.Such Certificates of Insurance shall state that Owner will be notified in writing "thirty (30)" days prior to cancellation,or non-renewal of insurance.Architect shall provide to Owner a certified copy of any and all applicable insurance policies upon request of Owner. Timely renewal certificates will be provided to Owner as the coverage renews. Insurance similar to that required of Architect shall be provided by or on behalf of all outside consultants ("consultants") and subcontractors ("Subcontractors") to cover their operations performed under this Agreement. Architect shall maintain Certificates of Insurance from all subcontractors,enumerating,among other things,the waivers in favor of,and insured status of,the Indemnitees, as required herein, and make them available to Owner upon request. The term "subcontractors"shall include subcontractors of any tier. AIA Document B101^m—2007(formerly 8161 TO—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American Institute of Architects.M rights Init. reserved.WARNING:This AIAs, Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 21 of this AIAs Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AtA software at 17:11:27 on 10/02/2014 under Order No.8204928427_1 which expires on 051012015,and is not forresale. User Notes: (1516408287) § 12.3 KEY PERSONNEL It is a material term of this Agreement that the services shall be carried on by, or under the personal direction and control of those individuals and entities listed below('Key Personnel"). It is understood that Key Personnel shall devote a sufficient amount of their personal time to the services to ensure the efficient and competent administration and supervision of the services. Architectural Team: Architect of Record: Bennett Benner Partners Structural Engineer: Mechanical,Electrical,Plumbing Design: Fountain Restoration: inCon-trol Corp. 2709 Northview McKinney,TX 75070 In the event that any of such individuals and/or entities are not or do not remain involved in the services in the capacity stated above,the Owner reserves the right to review and approve or disapprove the replacement of any such individuals and entities. If such replacement is disapproved, this Agreement may,at Owner's option,be terminated for cause. In addition, Owner shall have the right, upon notice, to demand that any key personnel retained by Architect be replaced by Architect. In the event of such demand,Architect shall,promptly after notification thereof, replace said individual or entity with an individual or entity satisfactory to Owner. If said replacement is disapproved,this Agreement,may,at Owner's option,be terminated for cause. § 12.4 The Texas Board of Architectural Examiners, Physical Address: Hobby Building, 333 Guadalupe, Suite 2-350,Austin,Texas 78711,telephone: (512)305-9000,has jurisdiction over individuals licensed under V.T.C.A., Occupations Code§ 1051. § 12.5 Architect and its professional subcontractors and each of their respective key employees are currently certified and licensed as required by applicable federal, state and other governmental and quasi-governmental requirements and shall maintain such certification and licensing throughout performance of its services. ARTICLE 13 SCOPE OF THE AGREEMENT § 13.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. § 13.2 This Agreement is comprised of the following documents listed below. ,1 AIA Document B101M-2007,Standard Form Agreement Between Owner and Architect as modified herein; .2 Other documents:The Construction Contract,to the extent the Construction Contract contains terms affecting the services of Architect. AIA Document 81017m—2007(formerly 11161 TO—1997).Copyright O 1974,1976,1987,1997 and 2007 by The American Institute of Architects.All rights InIL reserved.WARNING:This AIAa Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 22 of this AIA® Document,or any portion of it,may result In severe civil and criminal penaalu,and will be prosecuted to the maximum extent possible l under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order No.4204926427_1 which expires on 05/01/2018,and is not for resale. User Notes: (1518408287) This Agreement entered into as of the day and year first written above. FORT WORTH GARDEN CLUB,INC., a Texas non-profit corporation By: Taddie Hamilton,President BENNETT BENNER PARTNERS,INC., a Texas corporation A By: Michael J.Berint 41A Principal and ChiMExecutive Officer AIA Document B101 T"—2007(formerly 8161 Tr—1997).Copyright O 1974,1978,1087,1997 and 2007 by The American Institute of Architects.NI rights emit. reserved.WARNING:This AIA9 Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 23 of this AIAe Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 11:29:50 on 10/22/2014 under Order No.4204928427 1 which expires on 05/01/2015,and Is not for resale. User Notes: (2034779788) EXHIBIT"A" Architect's Architectural Design Services Proposal BEM1ETTa BF-MER PARTNERS Also Mir 607114►cANMaall July 15,2014 Ms.Leah Gilbert The Projects Group 420 Throchmorton Street,Suite 910 Fort Worth,Ti(78102 RE:Proposal for Fort Worth Botanic Guldens phase 2 Dear Lear, Thank you for the opportunity to provide arddtecauel services for the Pluse 2 scope at the Fort Words Botanic Gardens. We are very excited to work with tin team on this next phase and took biward to another successful project it is our understanding that Use work for this phase will generally Include: • Remedial work M the horseshow garden steps • Renovation of the shelter at the upper terrace ■ New tight ig at the shelter • Repair of the fbgp ne walkway • Repair of stone walls at the upper terrace • New tharadrad at upper terrace overlook • Replocemert of wood Joints at lower terrace paving • Founuh renowlikin as noted an the scope document dated 20140514 Other miscellaneous remedial work as noted an die scope documents doted 2014 *08 Our team will work with the Garden Club and their historic consultant to document and design ire shelter renovations to ensure that the new construction is respectful of the orlgktal design. Based on the Phew 1 work,we anticipate detalled and careful coordination during the constructlort process with the selected contractor. We anticipate weekly meetings to review coratruetion progress. it is our understanding that the project schedule will be: Scope Documents May 2014 Oonstrueton Documents July-Aug.2014 Bidding Aug.-Sept 2014 C instnwtlon Nov.2014-Feb.2015 Post Construction March 2015 ■500 West 7+SOVK SUO 1800( Port wbrlq Tksm 7810 E17Ma.49a1 I haawDbphmm AIA Document 8101 r'r-2007(formally 8151"'-1997).Copydght m 1974,1878,1887,1997 and 2007 by The American Institute of Architects.All rights Init. reserved.WARNING:This AIA41 Document Is protected by U.S.Copyright Law and Intamational Treatise.Unauthorized rspmducton or distribution 24 of this AIAo Document,or any portion of It,may result In severe civil and criminal penalties,and will be prosecuted to the maximum extant possible / under the law.This document was produced by AIA software at 17:11:27 on 1 010 212 01 4 under Order No.4204928427_1 which expires on 06/0112015,and Is not for resale. User Notes: (1518488287) (OmpamaliO M To-pertimVe clascribeillabove,Boma BeniverPorliners proposesWdirg ii Oornstnsaion Documents 6 BlddhWOoriwaar Negotiations-Phase 2 $30,000.OD(Fi tyseven Thousand Seven Hundred Fifty Dollars) Construction Observation(5 morift)-Phase 2 $27,750.00(Fifty-seven Thousand Seven Hundred Fifty Dollars) AN Fess exclude reimbursable expenses and applicable tames as described below We will invoice for our services on a monthly basis,based an a percentage complete per phase of the work- Additional orkAdditional Services and Rhes Tar HoutVSevfoas Additional Services will be billed on an hourly basis unless a 9xed fee or other method of compensation is mutually agreed upon.Our aarent hourly nates are atbac ed to this fee proposal.These robes apply for the tx amt calendar year and are subject to revision an January i of each year when they may be revised to reflect changes In stiff salaries over Vie pmoedng year. Reimbursable Expenses All out-of-pocket expenses incurred on bdwtf of a client for items such as travel,subsistence,printing and graphics,computer time,photography,mnilleritngs,scale modela,king-clisttnce telephone calk,and artside consultft services,will be billed at cost plus ten percent(10%).TDLR plan review lees and site inspection fees will also be reimbursable expenses.(Reasonable backup will be avallable upon request but limited to Items over$150 each.)A more complete listing of reimbursable expenses will be included In the Owner/Architect Agreement Summary Again,we are very pleased to have the opportunity to be part of you term.Thanks again for coaside ft Bennett Benner Pampers for lids project.We look forward to working with you. Shoerely, Approved W. R.Gannon Gries AIA Ms.Leah Gilbert Senior Associate Ilk Dans Attachments: Hourly Rate Schedule Standard Terms and Conditions 01500 V"7A9asrt spar 14M 1 Fen POW a4 teuu M02 817.SSS4991 I wwabbpixcom AIA Document 8101 m-2007(formerly B161"'-1997).Copyright O 1074,1978,1987,1997 and 2007 by The American Institute of Architects.All rights Ink. reserved WARNING:This AIA® Document Is protected by U.S.Copyright Law and international Treaties.Unauthorized reproduction or distribution 25 of this AIA° Document,or any partion of It,may result In severe cW and criminal penalties,and will be prosecuted to the maximum extent possible 1 under the few.This document was produced by AIA software at 17:11:27 on 10/0212014 under Order No.4204925427_t which expires on 0510112015,and Is not for resale. User Notes: (1516480287) EXHIBIT"B" Release and Waiver of Liability [follows] Init. AIA Document B1011—2007(formerly 13151 TM—1997).Copyright®1974,1978,1987,1997 and 2007 by The American Institute of Architects.All rights reserved.WARNING:This AIA" Document is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 26 of this AIA` Document,or any portion of it,may result in severe civil and criminal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 10/02/2014 under Order NoA204926427_1 which expires on 05/01/2015,and is not for resale. User Notes: (1516466287) RELEASE AND WAIVER OF LIABILITY I DATE: TO: Fort Worth Garden Club, Inc. ("Owner"), Owner's Representative, the City of Fort Worth, Owner's Lenders (if any), their respective related entities, partners, members, shareholders, directors, trustees, officers, agents, employees, successors, assigns and licensees, and all other parties claiming by or through any of the foregoing (collectively, the"Released Parties") In consideration of Owner granting me permission to enter Owner's property located at 3220 Botanic Garden Blvd., Fort Worth, Tarrant County, Texas, 76107 (the "Site"), upon which Owner intends to manage construction of certain alterations or restoration to existing facilities at the Botanic Garden (the "Project"), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I agree to the following statements and conditions: (a) 1 understand and agree that the Site is the location of a construction project and thus poses potential risks, including, without limitation, risks to my health, safety, and well-being, that do not exist in the ordinary property or workplace. I therefore assume any and all risks associated, arising from, or involved with, my activities on or around the Site, including any risk of personal or bodily injury to me or any risk of loss or damage to my personal property, and, on behalf of both myself and my heirs, I waive and relinquish, covenant not to sue, and fully release and forever discharge the Released Parties from any and all claims that I may have against the Released Parties, which may arise as a result of or in connection with any of my activities on or around the Site ("Personal Claims"), even if such Personal Claims may be caused by or attributed to, in whole or in part, the negligence of any Released Party. (b) It is understood and agreed that this Release and Waiver of Liability will be subject to the application of the laws of the State of Texas. It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the assumption of risk or waiver of liability set out above,that such legal limitations are made a part of the assumption of risk or waiver of liability and shall operate to amend the assumption of risk or waiver of liability to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and so modified, the assumption of risk or waiver of liability shall continue in full force and effect. (c) I understand that this document has important legal consequences and I represent that I can either read the English language or that I have had this document read to me by someone who does, and I fully understand the meaning and accept the consequences of all of the provisions of this document. Signature: Printed or Typed Name: Signed in Presence of: AIA Document B101 Tm—2007(formerly B161"-1997).Copyright O 1974,1978,1987,1987 and 2007 by The American Institute of Architects.Alt rights ink' reserved.WARNING:This NAM Document is protected by U.S.Copyright Law and international Trestles.Unauthorized reproduction or distribution 27 of this NAM Document,or any portion of k,may result in severe civil and crbninal penalties,and will be prosecuted to the maximum extent possible under the law.This document was produced by AIA software at 17:11:27 on 1 010 2/2 01 4 under Order No.4204926427 1 which expires on 05101/2015,and is not for resale. User Notes: (1516466287) EXHIBIT"C" Hourly Rates for Additional Services of Architect (Table deleted) HOURLY RATE SCHEDULE Classification Hourly Billing Rate Principal $275.00 Senior Project Manager $175.00 Project Manager $160.00 Project Architect 1 $140.00 Project Architect 11 $120.00 Landscape Architect 1 $140.00 Landscape Intern $100.00 Architectural Intern 1 $110.00 Architectural Intem II $100.00 Interior Designer 1 $130.00 Interior Designer 11 $120.00 Interior Designer III $100.00 Interior Design Intern $80.00 Construction Administrator $130.00 Technician 1 $120.00 Technician 11 $80.00 Sr.Administrative $120.00 Administrative $80.00 Planner $120.00 Urban Planner $150.00 Planning Intem $100.00 IT Management $110.00 AIA Document B1 01re—2007(formerly B1ti1^O—1997).Copyright O 1974,1978,1987,1997 and 2007 by The American institute of Architects.All rights Inst. reserved.WARNING:This AIA° Document Is protected by U.S.Copyright Law and International Treaties.Unauthorized reproduction or distribution 28 of this AIA• Document,or any portion of IL may result in severe civil and criminal penalties,and win be prosecuted to the maximum extent possible t under the law.This document was produced by AIA seftwere at 17:11:27 on 10107/2014 under Order No.4204928427_1 which expires on 0510112015,and Is not for resale User Notes: (1518488287) M&C Review Page 1 of 2 Official site of the City of Fort Worth, Texas CITY COUNCIL AGENDA FORTWORT11 COUNCIL ACTION: Approved on 3/3/2015 DATE: 3/3/2015 REFERENCE G-18431 LOG NAME: 80ROSEGARDENPHASEII NO.: CODE: G TYPE: NOW PUBLIC NO CONSENT HEARING: SUBJECT: Authorize Acceptance of a Donation of Infrastructure Repairs and Improvements in the Historic Rose Garden from the Fort Worth Garden Club and Moncrief Endowment Valued at $550,000.00, Authorize Waiver and Refund of Charged Permit Fees, Authorize Execution of a Design Procurement Agreement with the Fort Worth Garden Club in an Amount Not to Exceed $70,000.00 for the Rose Garden Restoration Plan and Authorize Amendment to City Secretary Contract No. 31502 Waiving Future Construction-Related Permit Fees for Future Projects Under the Contract (COUNCIL DISTRICT 7) RECOMMENDATION: It is recommended that the City Council: 1. Accept a donation from the Fort Worth Garden Club and Moncrief Endowment valued at $550,000.00 of infrastructure repairs and improvements in the Historic Rose Garden; 2. Authorize the waiver and refund of certain charged construction permit fees to the extent permitted by law; 3. Authorize a Design Procurement Agreement with the Fort Worth Garden Club in the amount up to $70,000.00 for the acquisition of the Rose Garden Restoration Plan; and 4. Authorize an amendment to City Secretary Contract No. 31502 waiving future construction-related permit fees to the extend permitted by law for future projects under the contract. DISCUSSION: The Fort Worth Garden Club (FWGC) and the Moncrief Endowment Committee (MEC) voted to hire an architectural firm and contractors to perform the Rose Garden Shelter, Cascade Ramp and Lower Rose Garden restoration project. Construction is anticipated to be completed by March 1, 2015. The total cost of this project is approximately $700,000.00 with the City committing to provide up to $230,000.00 with surplus funds from projects funded by previously appropriated gas well revenues from the Park Gas Lease Projects Fund. The proposed expenditure of the City funds complies with the City of Fort Worth's Financial Management Policy for the use of park gas well lease revenues. This leverage match of public/private funding equates to approximately 33 percent/67 percent. Bennett Benner Partners (BBP), an architectural firm, was hired by the FWGC and MEC and has guided this historic restoration project with construction being overseen by The Projects Group and constructed by The Fain Group, Inc. The Fort Worth Garden Club has been very successful in securing both individual and corporate contributions to this historic restoration project. They have received 12 donations at this time. The lead gift of$150,000.00 came from the Amon G. Carter Foundation. The value of the improvements being donated is estimated to be approximately $550,000.00. At their January 28, 2015 meeting, the Parks and Community Services Advisory Board endorsed staffs recommendation to accept this donation. It is anticipated that the fees to be waived and refunded are in an approximate amount of$2,500.00. Under the Design Procurement Agreement the City will acquire the Rose Garden Restoration Plan http://apps.cfwnet.org/council_packet/mc_review.asp?ID=20811&councildate=3/3/2015 4/17/2015 M&C Review Page 2 of 2 developed by BBP at a cost commensurate to the design and engineering fees related to the document development not to exceed $70,000.00. An amendment of City Secretary Contract No. 31502, a License Agreement between Fort Worth Garden Club and the City of Fort Worth, will be executed to include authorization that the Garden Club, its contractors and subcontractors, shall obtain all licenses and permits necessary for the construction of improvements to the Fort Worth Botanic Garden. Permit fees will be waived by the City to the extent permitted by law. Permit fee waivers for this project and any future improvements by the Garden Club to the Fort Worth Botanic Garden are appropriate because they further the public purpose of improving City-owned property with privately-donated funds. Adequate controls are in place to ensure that this public purpose will be carried out under the terms and conditions of the License Agreement, which requires that all improvements undertaken by or on behalf of the Garden Club must receive advance written approval from the Parks and Community Services Department and comply with all requirements set forth in the License Agreement. The Fort Worth Botanic Garden is located in COUNCIL DISTRICT 7 and serves the entire city. FISCAL INFORMATION/CERTIFICATION: The Financial Management Services Director certifies that funds are available in the Parks Gas Lease Project Fund, Botanic Garden, Rose Garden Project. Project appropriations total $230,000.00. The project has a balance of$211,641.00. Upon approval of this Agreement, the project will have a balance of$141,641.00. TO Fund/Account/Centers FROM Fund/Account/Centers 3) C282 531200 807490241880 $70,000.00 Submitted for City Manager's Office by: Susan Alanis (8180) Originating Department Head: Richard Zavala (5704) Additional Information Contact: Sandra Youngblood (5755) ATTACHMENTS http://apps.cfwnet.org/council_packet/mc_review.asp?ID=20811&councildate=3/3/2015 4/17/2015