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HomeMy WebLinkAboutContract 42741 (2)CITY SECRETARY CONTRACT No. _ 42}4).__ . . CITY OF FORT WORTH, TEXAS STANDARD AGREEMENT FOR ENGINEERING RELATED DESIGN SERVICES This AGREEMENT is between the City of Fort Worth, a Texas home -rule municipality (the "CITY"), and BAi, LLC, authorized to do business in Texas (the "PROFESSIONAL CONSULTANT") (collectively referred to as the "Parties"), for a PROJECT generally described as: Provide Communication/Paging System at the Justin Arena East Gate at Will Rogers Memorial Center. Article Scope of Services A. Scope of Services for the PROJECT is set forth in Attachment A, incorporated herein. The Parties agree that all services PROFESSIONAL CONSULTANT is to provide under the Scope of Services are professional services, the essence of which is to provide advice, judgment or opinion (the "Services"). Compensation A. Article II The PROFESSIONAL CONSULTANT'S compensation is set forth in Attachment A. Article III Terms of Payment Payments to the PROFESSIONAL CONSULTANT will be made as follows: A. Invoice and Payment (1) The PROFESSIONAL CONSULTANT shall provide the City sufficient documentation, including but not limited to meeting the requirements set forth in Attachment A to this AGREEMENT, to reasonably substantiate the invoices. (2) The PROFESSIONAL CONSULTANT will issue monthly invoices for all work performed under this AGREEMENT. Invoices are due and payable within thirty (30) days of receipt. (3) Upon completion of Services, the final payment of any balance will be due within thirty (30) days of receipt of the final invoice. WRMC East Gate Communication System (December 2011) BAi, LLC J 6- 1 2 A09 1 _ Ae`1 ao!f !17 �CORQ Page SECRETARY (4) In the event of a disputed or contested billing, only that portion so contested will be withheld from payment, and the undisputed portion will be paid. The CITY will exercise reasonableness in contesting any bill or portion thereof. No interest will accrue on any contested portion of the billing until mutually resolved. (5) If the CITY fails to make payment in full to PROFESSIONAL CONSULTANT for billings contested in good faith within 60 days of the amount due, the PROFESSIONAL CONSULTANT may, after giving 7 days' written notice to CITY, suspend services under this AGREEMENT until paid in full. In the event of suspension of services, the PROFESSIONAL CONSULTANT shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. Article IV Obligations of the Professional Consultant Amendments to Article IV, if any, are included in Attachment B, incorporated herein. A. General The PROFESSIONAL CONSULTANT will serve as the CITY'S professional consultant under this AGREEMENT, providing the Services outlined in Attachment A.. B Standard of Care The standard of care applicable to the PROFESSIONAL CONSULTANT'S services will be the degree of skill and diligence normally employed in the State of Texas by professional engineers or consultants performing the same or similar services at the time Services are performed C. Subsurface Investigations This paragraph is not applicable for this project. Professional Consultant's Instruments of Service Any studies, reports, sketches, drawings, specifications, proposals or other documents prepared by PROFESSIONAL CONSULTANT in the performance of the Services ("Instruments of Service") are the property of the CITY. Upon (a) completion of the Services and payment in full by CITY for said Services, (b) termination of this AGREEMENT, or (c) as otherwise instructed by the CITY, the Instruments of Service shall be delivered to the WRMC East Gate Communication System (December 2011) BAi, LLC Page 2 of 17 CITY in an organized fashion with PROFESSIONAL CONSULTANT retaining a copy. CITY may use such Instruments of Service in any manner it desires; provided, however, that the PROFESSIONAL CONSULTANT shall not be liable for any use or modification to the Instruments of Service by any entity without the express written consent of PROFESSIONAL CONSULTANT. E. Preparation of Professional Consultant Drawings The PROFESSIONAL CONSULTANT will provide to the CITY the original drawings of all plans in ink on reproducible Mylar sheets and electronic files in pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. F. Professional Consultant's Personnel at Construction Site (1) The presence or duties of the PROFESSIONAL CONSULTANT'S personnel at a construction site, whether as on -site representatives or otherwise, do not make the PROFESSIONAL CONSULTANT or its personnel in any way responsible for those duties that belong to the CITY and/or the CITY'S construction contractors or other entities, and do not relieve the construction contractors or any other entity of their obligations, duties, and responsibilities, including, but not limited to, all construction methods means, techniques sequences, and procedures necessary for coordinating and completing all portions of the construction work in accordance with the Construction Contract Documents and any health or safety precautions required by such construction work. The PROFESSIONAL CONSULTANT and its personnel have no authority to exercise any control over any construction contractor or other entity or their employees in connection with their work on this PROJECT or any health or safety precautions related thereto. (2) Except to the extent specific site visits are expressly detailed and set forth in Attachment A, the PROFESSIONAL CONSULTANT or its personnel shall have no obligation or responsibility to visit the construction site. Any such site visits by PROFESSIONAL CONSULTANT shall only be to become familiar with the progress or quality of the completed work on the PROJECT or to determine, in general, if the work on the PROJECT is being performed in a manner indicating that the PROJECT, when completed, will be in accordance with the Contract Documents. Nothing in this AGREEMENT or the Contract Documents shall be construed as requiring PROFESSIONAL CONSULTANT to make exhaustive or continuous on -site inspections to discover latent defects in the work or otherwise check the quality or quantity of the work on the PROJECT. If the PROFESSIONAL CONSULTANT recognizes a deviation from the Contract Documents while on site, the WRMC East Gate Communication System (December 2011) BAi, LLC Page 3 of 17 PROFESSIONAL CONSULTANT shall inform the CITY within a reasonable time of such recognition. (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform Services, the PROFESSIONAL CONSULTANT shall be entitled to rely upon other certifications or performance criteria contained within the Contract Documents when making such a certification; and shall not be required to provide warranties or guarantees in conjunction with such certification to establish materials, systems or equipment and performance criteria to be required in the Contract Documents. F. Opinions of Probable Cost, Financial Considerations, and Schedules (1) The PROFESSIONAL CONSULTANT shall provide opinions of probable costs for the PROJECT based on the information available to PROFESSIONAL CONSULTANT at the timethe opinion is issued, in accordance with Attachment A. (2) In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the PROFESSIONAL CONSULTANT has no control over cost or price of labor and materials; unknown or latent conditions of existing equipment or structures that may affect operation or maintenance costs; competitive bidding procedures and market conditions time or quality of performance by third parties; quality, type, management, or direction of operating personnel; and other economic and operational factors that may materially affect the ultimate PROJECT cost or schedule. Therefore, the PROFESSIONAL CONSULTANT makes no warranty or guarantee that the CITY'S actual PROJECT costs, financial aspects economic feasibility, or schedules will not vary from the PROFESSIONAL CONSULTANT'S opinions, analyses, projections, or estimates, and shall not be responsible for damages alleged to arise from such an opinion. Construction Progress Payments Recommendations by the PROFESSIONAL CONSULTANT to the CITY for periodic construction progress payments to the construction contractor will be based on the PROFESSIONAL CONSULTANT'S knowledge, information, and belief from selective sampling and observation that the work has progressed to the point indicated. Such recommendations do not represent that continuous or detailed examinations have been made by the PROFESSIONAL CONSULTANT to ascertain that the construction contractor has completed the work in exact accordance with the Contract Documents; that the final work will be acceptable in all respects; that the WRMC East Gate Communication System (December 2011) BAi, LLC Page 4 of 17 PROFESSIONAL CONSULTANT has made an examination to ascertain how or for what purpose the construction contractor has used the moneys paid; that title to any of the work materials, or equipment has passed to the CITY free and clear of liens, claims, security interests or encumbrances; or that there are not other matters at issue between the CITY and the construction contractor that affect the amount that should be paid. H. Record Drawings Record drawings, if required, will be prepared, in part, on the basis of information compiled and furnished by others, and may not always represent the exact location, type of various components, or exact manner in which the PROJECT was finally constructed. The PROFESSIONAL CONSULTANT is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. I. Minority and Woman business Enterprise (M/WBE) Participation This paragraph is not applicable for this project. J. Right to Audit (1) PROFESSIONAL CONSULTANT agrees that the CITY shall, until the expiration of five (5) years after final payment under this contract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of the PROFESSIONAL CONSULTANT involving transactions relating to this contract. PROFESSIONAL CONSULTANT agrees that the CITY shall have access during normal working hours to all necessary PROFESSIONAL CONSULTANT facilities and shall be provided adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. The CITY shall give PROFESSIONAL CONSULTANT reasonable advance written notice of intended audits. (2) PROFESSIONAL CONSULTANT further agrees to include in all its subcontractor agreements hereunder a provision to the effect that the subcontractor agrees that the CITY shall, until the expiration of five (5) years after final payment under the subcontract, have access to and the right to examine and photocopy any directly pertinent books, documents, papers and records of such subcontractor, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subcontractor facilities, and shall be provided adequate and appropriate work space, in order to conduct audits in compliance with the provisions of this article together with subsection (3) hereof. CITY shall give subcontractor reasonable advance written notice of intended audits. WRMC East Gate Communication System (December 2011) BA, LLC Page 5 of 17 (3) PROFESSIONAL CONSULTANT and subcontractor agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse PROFESSIONAL CONSULTANT for the cost of copies at the rate published in the Texas Administrative Code in effect as of the time copying is performed. K. Insurance (1) PROFESSIONAL CONSULTANT'S INSURANCE a. Commercial General Liability — the PROFESSIONAL CONSULTANT shall maintain commercial general liability (CGL) and, if necessary, commercial umbrella insurance with a limit of not less than $1,000,000.00 per each occurrence with a $2,000,000.00 aggregate. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to this PROJECT or location. The CITY shall be included as an insured under the CGL, using ISO additional insured endorsement or a substitute providing equivalent coverage, and under the commercial umbrella, if any This insurance shall apply as primary insurance with respect to any other insurance or self-insurance programs afforded to the CITY. The Commercial General Liability insurance policy shall have no exclusions by endorsements that would alter or nullify premises/operations, products/completed operations, contractual, personal injury, or advertizing injury, which are normally contained within the policy, unless the CITY approves such exclusions in writing. ii. PROFESSIONAL CONSULTANT waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the commercial general liability or commercial umbrella liability insurance maintained in accordance with this AGREEMENT. b. Business Auto - the PROFESSIONAL CONSULTANT shall maintain business auto liability and, if necessary, commercial umbrella liability insurance with a limit of not less than $1,000 000 each accident. Such insurance shall cover liability arising out of `any auto", including owned, hired, and non -owned autos, when said vehicle is used in the course of providing Services for the PROJECT If the PROFESSIONAL CONSULTANT owns no vehicles, coverage for hired or non -owned is acceptable. PROFESSIONAL CONSULTANT waives all rights against the CITY and its agents, officers, directors and employees for WRMC East Gate Communication System (December 2011) BAi, LLC Page 6 of 17 recovery of damages to the extent these damages are covered by the business auto liability or commercial umbrella liability insurance obtained by PROFESSIONAL CONSULTANT pursuant to this AGREEMENT or under any applicable auto physical damage coverage. c. Workers' Compensation — PROFESSIONAL CONSULTANT shall maintain workers compensation and employers liability insurance and, if necessary, commercial umbrella liability insurance with a limit of not less than $100,000.00 each accident for bodily injury by accident or $100,000.00 each employee for bodily injury by disease, with $500,000.00 policy limit. i. PROFESSIONAL CONSULTANT waives all rights against the CITY and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by workers compensation and employer's liability or commercial umbrella insurance obtained by PROFESSIONAL CONSULTANT pursuant to this AGREEMENT. d. Professional Liability — the PROFESSIONAL CONSULTANT shall maintain professional liability, a claims -made policy, with a minimum of $1,000 000.00 per claim and aggregate. The policy shall contain a retroactive date prior to the date of the contract or the first date of services to be performed, whichever is earlier. Coverage shall be maintained for a period of five (5) years following the completion of the contract. An annual certificate of insurance specifically referencing this PROJECT shall be submitted to the CITY for each year following completion of the contract. (2) GENERAL INSURANCE REQUIREMENTS a. Certificates of insurance evidencing that the PROFESSIONAL CONSULTANT has obtained all required insurance shall be delivered to the CITY prior to PROFESSIONAL CONSULTANT proceeding with the PROJECT. b. Applicable policies shall be endorsed to name the CITY an Additional Insured thereon as its interests may appear The term CITY shall include its employees, officers officials, agents, and volunteers with respect to the Services. c. Certificate(s) of insurance shall document that insurance coverage specified in this AGREEMENT is provided under applicable policies documented thereon. WRMC East Gate Communication System (December 2011) BAi, LLC Page 7 of 17 d. Any failure on part of the CITY to request required insurance documentation shall not constitute a waiver of the insurance requirements. e. A minimum of thirty (30) days notice of cancellation or material change in coverage shall be provided to the CITY. A ten (10) days notice shall be acceptable in the event of non-payment of premium. Such terms shall be endorsed onto PROFESSIONAL CONSULTANT'S insurance policies. Notice shall be sent to the respective Department Director (by name), City of Fort Worth, 1000 Throckmorton, Fort Worth Texas 76102. f. Insurers for all policies must be authorized to do business in the State of Texas and have a minimum rating of A:V or greater, in the current A.M Best Key Rating Guide or have reasonably equivalent financial strength and solvency to the satisfaction of Risk Management. g. Any deductible or self insured retention in excess of $25,000.00 that would change or alter the requirements herein is subject to approval by the CITY in writing, if coverage is not provided on a first -dollar basis. The CITY, at it sole discretion, may consent to alternative coverage maintained through insurance pools or risk retention groups. Dedicated financial resources or letters of credit may also be acceptable to the CITY. h. Applicable policies shall each be endorsed with a waiver of subrogation in favor of the CITY as respects the PROJECT. I. The CITY shall be entitled, upon its request and without incurring expense to review the PROFESSIONAL CONSULTANT'S insurance policies including endorsements thereto and, at the CITY'S discretion; the PROFESSIONAL CONSULTANT may be required to provide proof of insurance premium payments. If commercially reasonable, lines of coverage underwritten on a "claims - made basis," other than Professional Liability, shall contain a retroactive date coincident with or prior to the date of this AGREEMENT. The certificate of insurance shall state both the retroactive date and that the coverage is claims -made k. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption nor restrictive modification or changes from date of commencement of the PROJECT until final payment and termination of any coverage required to be maintained after final payments. The CITY shall not be responsible for the direct payment of any WRMC East Gate Communication System (December 2011) BAi, LLC Pages of 17 insurance premiums required by this AGREEMENT. m. Subcontractors to/of the PROFESSIONAL CONSULTANT shall be required by the PROFESSIONAL CONSULTANT to maintain the same or reasonably equivalent insurance coverage as required for the PROFESSIONAL CONSULTANT When sub subcontractors maintain insurance coverage, PROFESSIONAL CONSULTANT shall provide CITY with documentation thereof on a certificate of insurance. L. Independent Professional Consultant The PROFESSIONAL CONSULTANT agrees to perform all services as an independent PROFESSIONAL CONSULTANT and not as a subcontractor, agent, or employee of the CITY. M. Disclosure The PROFESSIONAL CONSULTANT acknowledges to the CITY that it has made full disclosure in writing of any existing conflicts of interest or potential conflicts of interest, including personal financial interest, direct or indirect, in property abutting the proposed PROJECT and business relationships with abutting property cities. The PROFESSIONAL CONSULTANT further acknowledges that it will make disclosure in writing of any conflicts of interest that develop subsequent to the signing of this contract and prior to final payment under the contract. N. Asbestos or Hazardous Substances (1) If the PROFESSIONAL CONSULTANT encounters asbestos or hazardous substances in any form on the PROJECT, the PROFESSIONAL CONSULTANT will stop its own work in the affected portions of the PROJECT to permit testing and evaluation. (2) If asbestos or other hazardous substances are suspected, the CITY may request the PROFESSIONAL CONSULTANT to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. 0 Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineenng practice standards which the PROFESSIONAL CONSULTANT should have been aware of at the time this AGREEMENT was executed, the PROFESSIONAL CONSULTANT shall revise plans and specifications, as required, at its own cost and expense WRMC East Gate Communication System (December 2011) BAi, LLC Page 9 of 17 However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards cnteria which are published after the date of this AGREEMENT which the P ROFESSIONAL CONSULTANT could not have been reasonably aware of, the PROFESSIONAL CONSULTANT shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. P. Schedule P ROFESSIONAL CONSULTANT shall manage the PROJECT in accordance with the schedule developed per Attachment A to this AGREEMENT. Article V Obligations of the City Amendments to Article V, if any, are included in Attachment B. A. City -Furnished Data P ROFESSIONAL CONSULTANT may rely upon the accuracy, timeliness, and completeness of the information provided by the CITY. B Access to Facilities and Property The CITY will make its facilities accessible to the PROFESSIONAL CONSULTANT as required for the PROFESSIONAL CONSULTANT'S performance of its Services. The CITY will perform at no cost to the P ROFESSIONAL CONSULTANT, such tests of equipment, machinery, pipelines, and other components of the CITY'S facilities as may be required in connection with the Services. The CITY will be responsible for all acts of the CITY'S personnel. C. Advertisements, Permits, and Access P nless otherwise agreed to in the Scope of Services, the CITY will obtain, arrange and pay for all advertisements for bids; permits and licenses required by local, state, or federal authorities; and land, easements, rights -of - way and access necessary performance of the Services or the PROJECT construction. WRMC East Gate Communication System (December 2011) Page 10 of 17 BAi, LLC D. Timely Review The CITY will examine the PROFESSIONAL CONSULTANT'S Instruments of Service, obtain advice of an attorney insurance counselor, accountant, auditor, bond and financial advisors, and other consultants as the CITY deems appropriate; and render in writing decisions required by the CITY in a timely manner in accordance with the PROJECT schedule prepared in accordance with Attachment A. E. Prompt Notice The CITY will give prompt written notice to the PROFESSIONAL CONSULTANT whenever CITY observes or becomes aware of any development that affects the scope or timing of the Services or of any defect in the Services or the construction contractors' work. F. Asbestos or Hazardous Substances Release. (1) CITY acknowledges PROFESSIONAL CONSULTANT will perform part of the Services at the PROJECT, which may contain hazardous materials, including asbestos containing materials or conditions, and that PROFESSIONAL CONSULTANT had no prior role in the generation, treatment, storage, or disposition of such materials. In consideration of the associated risks that may give rise to claims by third parties or employees of City, City hereby releases PROFESSIONAL CONSULTANT from any damage or liability related to the presence of such materials. (2) The release required above shall not apply in the event the discharge, release or escape of hazardous substances, contaminants or asbestos is a result of PROFESSIONAL CONSULTANTS negligence or if PROFESSIONAL CONSULTANT bnngs such hazardous substance, contaminant or asbestos onto the PROJECT. G. Contractor Indemnification and Claims The CITY agrees to include in all construction contracts the provisions of Article IV.F regarding the PROFESSIONAL CONSULTANT'S Personnel at Construction Site, and provisions providing contractor indemnification of the CITY and the PROFESSIONAL CONSULTANT for contractor's negligence. H. Contractor Claims and Third -Party Beneficiaries (1) The CITY agrees to include the following clause in all contracts with construction contractors and equipment or materals suppliers: WRMC East Gate Communication System (December 2011) Page ii of 17 BAi, LLC "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the PROFESSIONAL CONSULTANT, its officers, employees, and subcontractors, for any claim arising out of, in connection with, or resulting from the engineering services performed. Only the CITY will be the beneficiary of any undertaking by the PROFESSIONAL CONSULTANT " (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the PROFESSIONAL CONSULTANT and there are no third - party beneficiaries. (3) The CITY will include in each agreement it enters into with any other entity or person regarding the PROJECT a provision that such entity or person shall have no third -party beneficiary rights under this AGREEMENT. (4) Nothing contained in this section V.H. shall be construed as a waiver of any right the CITY has to bring a claim against PROFESSIONAL CONSULTANT. City's Insurance (1) The CITY may maintain property insurance on certain pre-existing structures associated with the PROJECT. (2) The CITY will ensure that Builders Risk/Installation insurance is maintained at the replacement cost value of the PROJECT. The CITY will, upon written request by PROFESSIONAL CONSULTANT, provide a copy of the policy or documentation of such on a certificate of insurance. (3) The CITY will specify that the Builders Risk/Installation insurance shall be comprehensive in coverage appropriate to the PROJECT risks J. Litigation Assistance The Scope of Services does not include costs of the PROFESSIONAL CONSULTANT for required or requested assistance to support, prepare, document bring, defend or assist in litigation undertaken or defended by the CITY. In the event CITY requests such services of the PROFESSIONAL CONSULTANT, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties regarding those services and the payment therefor. Changes WRMC East Gate Communication System (December 2011) BAi, LLC Page 12 of 17 The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the PROFESSIONAL CONSULTANT'S cost of or time required for performance of the Services, an equitable adjustment will be made through an amendment to this AGREEMENT with appropriate CITY approval. If the PROFESSIONAL CONSULTANT is required by the CITY to perform services outside the Scope of Services ("Additional Services"), PROFESSIONAL CONSULTANT shall be compensated for the Additional Services on a time and materials basis. Such Additional Services and compensation therefor shall be agreed to in writing and incorporated into this AGREEMENT as an amendment. Article VI General Legal Provisions Amendments to Article VI, if any, are included in Attachment B. A. Authorization to Proceed PROFESSIONAL CONSULTANT shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B Deleted C. Force Majeure The PROFESSIONAL CONSULTANT is not responsible for damages or delay in performance caused by acts of God, strikes lockouts, accidents, or other events beyond the control of the PROFESSIONAL CONSULTANT that prevent PROFESSIONAL CONSULTANT'S performance of the Services.. D. Termination (1) This AGREEMENT may be terminated only by the City for convenience on thirty (30) days written notice. This AGREEMENT may be terminated by either the CITY or the PROFESSIONAL CONSULTANT for cause if either party fails substantially to perform through no fault of the other and does not commence correction of such nonperformance with in five (5) days of written notice and diligently complete the correction thereafter. (2) If this AGREEMENT is terminated for the convenience of the City, the PROFESSIONAL CONSULTANT will be paid for termination expenses as follows: WRMC East Gate Communication System (December 2011) BAi, LLC Page 13 of 17 a.) Cost of reproduction of partial or complete Instruments of Service; b.) Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; c.) The time requirements for the PROFESSIONAL CONSULTANT'S personnel to document the work underway at the time of the CITY'S termination for convenience so that the work effort is suitable for long time storage. (3) Prior to proceeding with termination services, the PROFESSIONAL CONSULTANT will submit to the CITY an itemized statement of all termination expenses. The CITY S approval will be obtained in writing prior to proceeding with termination services E. Suspension, Delay, or Interruption to Work The CITY may suspend, delay, or interrupt the Services for the convenience of the CITY. In the event of such suspension, delay or interruption, an equitable adjustment in the PROJECT'S schedule, commitment and cost of the PROFESSIONAL CONSULTANT S personnel and subcontractors, and P ROFESSIONAL CONSULTANT'S compensation will be made. F. Indemnification In accordance with Texas Local Government Code Section 271.904, the P ROFESSIONAL CONSULTANT shall indemnify and hold harmless 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 PROFESSIONAL CONSULTANT or PROFESSIONAL CONSULTANT'S agent, consultant under contract, or another entity over which the PROFESSIONAL CONSULTANT exercises control. G. Assignment N either party shall assign all or any part of this AGREEMENT without the prior written consent of the other party H. Interpretation All indemnifications and limitations on liability in this AGREEMENT are business understandings between the parties and shall apply to all the different theories of recovery, including breach of contract or warranty, tort including negligence, strict or statutory liability or any other cause of action, except for willful misconduct or gross negligence for limitations of liability and WRMC East Gate Communication System (December 2011) Page 14 of 17 BAi, LLC sole negligence for indemnification. Parties mean the CITY and the PROFESSIONAL CONSULTANT, and their officers, employees agents, and subcontractors. I. Jurisdiction The law of the State of Texas shall govern the validity of this AGREEMENT, its interpretation and performance, and any other claims related to it. The venue for any litigation related to this AGREEMENT shall be Tarrant County, Texas. J. Severability and Survival If any of the provisions contained in this AGREEMENT are held for any reason to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability will not affect any other provision, and this AGREEMENT shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Articles V(F).,IV(D)., VI(D), VI(F), VI(H)., and VI(I) shall survive termination of this AGREEMENT for any cause. Observe and Comply PROFESSIONAL CONSULTANT shall at all times observe and comply with all federal and state laws and regulations and with all City ordinances and regulations which in any way affect this AGREEMENT and the Services hereunder, and shall observe and comply with all orders, laws ordinances and regulations which may exist or may be enacted later by governing bodies having jurisdiction or authority for such enactment. No plea of misunderstanding or ignorance thereof shall be considered. PROFESSIONAL CONSULTANT agrees to defend, indemnify and hold harmless CITY and all of its officers, agents and employees from and against all claims or liability arising out of the violation of any such order, law ordinance, or regulation, whether it be by itself or its employees. L. Notice Any notice or request mentioned in this AGREEMENT shall be in writing and may be effected by personal delivery in writing or by registered or certified mail, return receipt requested, addressed to the proper party, at the following address: PROF. CONS. Representative: CITY Representative: Article Vil Attachments, Schedules, and Signatures WRMC East Gate Communication System (December 2011) Page 1s of 17 BAi, LLC This AGREEMENT, including its attachments and schedules, constitutes the entire AGREEMENT, supersedes all prior written or oral understandings, and may only be changed by a written amendment executed by both parties. The following attachments and schedules are hereby made a part of this AGREEMENT: Attachment A - Scope of Services, Compensation, and Schedule Attachment B - Amendments to Standard Agreement for Engineering Services Executed and effective this the Ci day of JounaRN , 20 c . By: Ron Gonzales Assistant City Secretary CITY OF FORT WORTH: By: Fernando Costa Assistant City Manager APPROVED AS.-cO FORM AND LEGALITY: APPROVAL RECOMMENDED: By: Douglas W-B"(ack Assistant City Attorney M&C No.: M&C Is Not Required M&C Date: WRMC East Gate Communication System (December 2011) BAi, LLC 7_, 3 07 tk Douglas W. Wiersig, PE Director, Transportation and Public Works Department PROFESSIONAL CONSULTANT: Charles R. Bonner President sita."11C10: RECORD Page 16 of. SECRETARY l7 Y Ft WORTH, TX ATTACHMENT A - SCOPE OF SERVICES, COMPENSATION, SCHEDULE Refer to the attached BAi, LLC letter dated September 24, 2011, subject: East Gate Communications System Design Proposal. If any conflict arises between the Attachments/Exhibits and the Agreement the terms of the Agreement shall control. ATTACHMENT B - AMENDMENTS TO AGREEMENT NONE WRMC East Gate Communication System (December 2011) BAi, LLC Page 17 of 17 Ceet3A1 Since 1935 /LLC CONSULTANTS IN ACOUSTICS. 4006 SPEEDWAY AUSTM, TEXAS 78751-4628 September 24, 2011 Mr. James Homer Will Rogers Memorial Coliseum Fort Worth, Texas kerniithltarA A UnIOVISUAL, AND I NEORMATJON TECHNOLOGIES voice: 512-476-3464 fax: 512-476-9442 www.baiaustin.com RE: East Gate Communications System Design Proposal Dear Mr. Horner: Confirming our discussions, we are pleased to submit this proposal for design services for the communications/paging system at the East Gate. Following is a proposed scope of services and fee structure for your consideration: SCOPE OF SERVICES 1. Visit the site; Verify the concept discussed, relating to interface of new equipment with existing equipment, addition of new paging horns and amplifier, paging microphones, weatherized box, and other details. 2. Prepare sufficient drawings and specifications to allow WRMC to obtain pricing from prospective contractors 3. Assist WRMC in evaluating proposals, and in responding to questions from prospective contractors and the eventual contractor. FEE STRUCTURE For the services above a fixed fee of $1,500.00 will be charged. Reimbursable expenses will be limited to one trip Austin -Fort Worth, at cost If travel can be combined with other work on site, travel costs will not be charged. We appreciate the opportunity of working with you. If I can provide any further information at this time, please let me know. Sincerely, Richard Boner rboner(Wbaiaustin.com i? t2