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HomeMy WebLinkAboutContract 61251CSC No. 61251 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 R.L. Woods & Associates, LLC, authorized to do business in Texas, (the "ENGINEER"), for a PROJECT generally described as: Structural Assessment for 512 W. 4t" Street, Fort Worth, TX The Agreement documents shall include the following: 1. This Standard Agreement for Professional Services; 2. Attachment "A'— Scope of Services; Attachment "A", which are attached hereto and incorporated herein, are made a part of this Agreement for all purposes. In the event of any conflict between the terms and conditions of Attachment "A" and the terms and conditions set forth in the body of this Agreement, the terms and conditions of this Agreement shall control. Article I Scope of Services A. The Scope of Services is set forth in Attachment "A'. Article II Compensation A. The ENGINEER's compensation shall be in the amount of $12,513.00 as set forth in Attachment "A". B. If applicable, upon completion, the Consultant may, at its option, utilize the Project to qualify for the Energy Efficient Commercial Building Federal Tax Deduction (179D) as permitted under IRS guidelines. If requested, the Owner shall acknowledge the Architect as the "Designer" of the Project by completing an allocation form (that Architect will provide) and shall allow the Architect's independent third -party evaluation firm (and its licensed inspector) reasonable access to perform a one-time, on -sire inspection and certification of the Project's HVAC, interior lighting and/or building envelope systems. City of Fort Worth, Texas OFFICIAL RECORD Standard Agreement for Engineering Related Design Services CITY SECRETARY Revised Date: 9/27/2021 Page 1 of 18 FT. WORTH, TX /-57M 1771111111 Terms of Payment Payments to the ENGINEER will be made as follows: A. Invoice and Payment (1) The Engineer 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 ENGINEER will issue monthly invoices for all work performed under this AGREEMENT. Invoices are due and payable within 30 days of receipt. (3) Upon completion of services enumerated in Article I, the final payment of any balance will be due within 30 days of receipt of the final invoice. (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 ENGINEER for billings contested in good faith within 60 days of the amount due, the ENGINEER 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 ENGINEER shall have no liability to CITY for delays or damages caused the CITY because of such suspension of services. Article IV Obligations of the Engineer Amendments to Article IV, if any, are included in Attachment "A". A General The ENGINEER will serve as the CITY's professional engineering representative under this Agreement, providing professional engineering consultation and advice and furnishing customary services incidental thereto. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 2 of 18 B. Standard of Care The standard of care applicable to the ENGINEER'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 such services are performed. C. Subsurface Investigations (1) The ENGINEER shall advise the CITY with regard to the necessity for subcontract work such as special surveys, tests, test borings, or other subsurface investigations in connection with design and engineering work to be performed hereunder. The ENGINEER shall also advise the CITY concerning the results of same. Such surveys, tests, and investigations shall be furnished by the CITY, unless otherwise specified in Attachment "A". (2) In soils, foundation, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample intervals and at locations other than where observations, exploration, and investigations have been made. Because of the inherent uncertainties in subsurface evaluations, changed or unanticipated underground conditions may occur that could affect the total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ENGINEER. D. Preparation of Engineering Drawings The ENGINEER will provide to the CITY the drawings of all plans in electronic format and in .pdf format, or as otherwise approved by CITY, which shall become the property of the CITY. CITY may use such drawings in any manner it desires; provided, however, that the ENGINEER shall not be liable for the use of such drawings for any project other than the PROJECT described herein. E. Engineer's Personnel at Construction Site (1) The presence or duties of the ENGINEER's personnel at a construction site, whether as on -site representatives or otherwise, do not make the ENGINEER 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 City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 3 of 18 work in accordance with the Contract Documents and any health or safety precautions required by such construction work. The ENGINEER 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 or any health or safety precautions. (2) Except to the extent of specific site visits expressly detailed and set forth in Attachment "A", the ENGINEER or its personnel shall have no obligation or responsibility to visit the construction site 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, nor shall anything in the Contract Documents or the agreement between CITY and ENGINEER be construed as requiring ENGINEER 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 ENGINEER makes on -site observation(s) of a deviation from the Contract Documents, the ENGINEER shall inform the CITY. (3) When professional certification of performance or characteristics of materials, systems or equipment is reasonably required to perform the services set forth in the Scope of Services, the ENGINEER shall be entitled to rely upon 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 ENGINEER shall provide opinions of probable costs based on the current available information at the time of preparation, in accordance with Attachment "A". (2) In providing opinions of cost, financial analyses, economic feasibility projections, and schedules for the PROJECT, the ENGINEER 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 ENGINEER makes no warranty that the CITY's actual PROJECT costs, financial aspects, economic feasibility, or schedules will not vary from the ENGINEER's opinions, analyses, projections, or estimates. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 4 of 18 G. Construction Progress Payments Recommendations by the ENGINEER to the CITY for periodic construction progress payments to the construction contractor will be based on the ENGINEER'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 ENGINEER 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 ENGINEER 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 ENGINEER is not responsible for any errors or omissions in the information from others that is incorporated into the record drawings. I. Minority Business and Small Business Enterprise (MBE)(SBE) Participation In accord with the City of Fort Worth Business Diversity Ordinance No. 20020-12-2011, as amended, the City has goals for the participation of minority business enterprises and/or small business enterprises in City contracts. Engineer acknowledges the MBE and SBE goals established for this contract and its accepted written commitment to MBE and SBE participation. Any misrepresentation of facts (other than a negligent misrepresentation) and/or the commission of fraud by the Engineer may result in the termination of this Agreement and debarment from participating in City contracts for a period of time of not less than three (3) years. J. Right to Audit (1) ENGINEER 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 ENGINEER involving transactions relating to this contract. ENGINEER agrees that the CITY shall have access during normal City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 5 of 18 working hours to all necessary ENGINEER 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 ENGINEER reasonable advance notice of intended audits. (2) ENGINEER further agrees to include in all its subconsultant agreements hereunder a provision to the effect that the subconsultant 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 subconsultant, involving transactions to the subcontract, and further, that the CITY shall have access during normal working hours to all subconsultant 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 subconsultant reasonable advance notice of intended audits. (3) ENGINEER and subconsultant agree to photocopy such documents as may be requested by the CITY. The CITY agrees to reimburse ENGINEER 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) ENGINEER'S INSURANCE a. Commercial General Liability — the ENGINEER 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. ENGINEER waives all rights against the CITY and its agents, City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 6 of 18 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 ENGINEER 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 the PROJECT. If the engineer owns no vehicles, coverage for hired or non -owned is acceptable. ENGINEER 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 business auto liability or commercial umbrella liability insurance obtained by ENGINEER pursuant to this agreement or under any applicable auto physical damage coverage. c. Workers' Compensation —ENGINEER 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. ENGINEER 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 ENGINEER pursuant to this agreement. d. Professional Liability — the ENGINEER 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 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 ENGINEER has obtained all required insurance shall be delivered to the CITY prior to ENGINEER proceeding with the PROJECT. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 7 of 18 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 as respects the contracted services. c. Certificate(s) of insurance shall document that insurance coverage specified in this agreement are provided under applicable policies documented thereon. 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. 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. The CITY shall be entitled, upon its request and without incurring expense, to review the ENGINEER's insurance policies including endorsements thereto and, at the CITY's discretion; the ENGINEER may be required to provide proof of insurance premium payments. j. Lines of coverage, other than Professional Liability, underwritten on a claims -made basis, shall contain a retroactive date coincident with or prior to the date of the contractual agreement. The certificate of insurance shall state both the retroactive date and that the coverage is claims -made. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 8 of 18 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 insurance premiums required by this agreement. m. Sub consultants and subcontractors to/of the ENGINEER shall be required by the ENGINEER to maintain the same or reasonably equivalent insurance coverage as required for the ENGINEER. When sub consultants/subcontractors maintain insurance coverage, ENGINEER shall provide CITY with documentation thereof on a certificate of insurance. L. Independent Consultant The ENGINEER agrees to perform all services as an independent consultant and not as a subcontractor, agent, or employee of the CITY. M. Disclosure The ENGINEER 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 ENGINEER 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 asbestos or hazardous substances in any form are encountered or suspected, the ENGINEER 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 ENGINEER to assist in obtaining the services of a qualified subcontractor to manage the remediation activities of the PROJECT. O. Permitting Authorities - Design Changes If permitting authorities require design changes so as to comply with published design criteria and/or current engineering practice standards which the ENGINEER should have been aware of at the time this City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 9 of 18 Agreement was executed, the ENGINEER shall revise plans and specifications, as required, at its own cost and expense. However, if design changes are required due to the changes in the permitting authorities' published design criteria and/or practice standards criteria which are published after the date of this Agreement which the ENGINEER could not have been reasonably aware of, the ENGINEER shall notify the CITY of such changes and an adjustment in compensation will be made through an amendment to this AGREEMENT. P. Schedule ENGINEER 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 "A". A City -Furnished Data ENGINEER 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 ENGINEER as required for the ENGINEER's performance of its services. The CITY will perform, at no cost to the ENGINEER, such tests of equipment, machinery, pipelines, and other components of the CITY's facilities as may be required in connection with the ENGINEER's services. The CITY will be responsible for all acts of the CITY's personnel. C. Advertisements, Permits, and Access Unless 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 for the ENGINEER's services or PROJECT construction. D. Timely Review The CITY will examine the ENGINEER's studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 10 of 18 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 ENGINEER whenever CITY observes or becomes aware of any development that affects the scope or timing of the ENGINEER's services or of any defect in the work of the ENGINEER or construction contractors. F. Asbestos or Hazardous Substances Release. (1) CITY acknowledges ENGINEER will perform part of the work at CITY's facilities that may contain hazardous materials, including asbestos containing materials, or conditions, and that ENGINEER 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 ENGINEER 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 ENGINEER's negligence or if ENGINEER brings 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.E. regarding the ENGINEER's Personnel at Construction Site, and provisions providing contractor indemnification of the CITY and the ENGINEER 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 materials suppliers: "Contractors, subcontractors and equipment and materials suppliers on the PROJECT, or their sureties, shall maintain no direct action against the ENGINEER, 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 ENGINEER." City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 11 of 18 (2) This AGREEMENT gives no rights or benefits to anyone other than the CITY and the ENGINEER 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 ENGINEER. I. 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 may provide ENGINEER 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 ENGINEER 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 ENGINEER, this AGREEMENT shall be amended or a separate agreement will be negotiated between the parties. K. Changes The CITY may make or approve changes within the general Scope of Services in this AGREEMENT. If such changes affect the ENGINEER'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. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 12 of 18 Article VI General Legal Provisions Amendments to Article VI, if any, are included in Attachment "A". A Authorization to Proceed ENGINEER shall be authorized to proceed with this AGREEMENT upon receipt of a written Notice to Proceed from the CITY. B. Reuse of Project Documents All designs, drawings, specifications, documents, and other work products of the ENGINEER, whether in hard copy or in electronic form, are instruments of service for this PROJECT, whether the PROJECT is completed or not. Reuse, change, or alteration by the CITY or by others acting through or on behalf of the CITY of any such instruments of service without the written permission of the ENGINEER will be at the CITY's sole risk. The CITY shall own the final designs, drawings, specifications and documents. C. Force Majeure The ENGINEER 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 ENGINEER that prevent ENGINEER's performance of its obligations hereunder. D. Termination (1) This AGREEMENT may be terminated only by the City for convenience on 30 days' written notice. This AGREEMENT may be terminated by either the CITY or the ENGINEER 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 5 days of written notice and diligently complete the correction thereafter. (2) If this AGREEMENT is terminated for the convenience of the City, the ENGINEER will be paid for termination expenses as follows: a.) Cost of reproduction of partial or complete studies, plans, specifications or other forms of ENGINEER'S work product; b.) Out-of-pocket expenses for purchasing electronic data files and other data storage supplies or services; City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 13 of 18 c.) The time requirements for the ENGINEER'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 ENGINEER 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 of the ENGINEER 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 ENGINEER's personnel and subcontractors, and ENGINEER's compensation will be made. F. Indemnification In accordance with Texas Local Government Code Section 271.904, the ENGINEER shall 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 subcontractor or supplier committed by the ENGINEER or ENGINEER's agent, consultant under contract, or another entity over which the ENGINEER exercises control. G. Assignment Neither party shall assign all or any part of this AGREEMENT without the prior written consent of the other party. H. Interpretation Limitations on liability and indemnities 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 sole negligence for indemnification. Parties mean the CITY and the ENGINEER, and their officers, employees, agents, and subcontractors. 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 City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 14 of 18 venue for any litigation related to this AGREEMENT shall be Tarrant County, Texas. J. Severabilityand 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., VI.B., VI.D., VI.F., VI.H., and VI.I. shall survive termination of this AGREEMENT for any cause. K. Observe and Comply ENGINEER 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 work 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. ENGINEER 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. Immigration Nationality Act City actively supports the Immigration & Nationality Act (INA) which includes provisions addressing employment eligibility, employment verification, and nondiscrimination. Vendor shall verify the identity and employment eligibility of all employees who perform work under this Agreement. Vendor shall complete the Employment Eligibility Verification Form (1-9), maintain photocopies of all supporting employment eligibility and identity documentation for all employees, and upon request, provide City with copies of all 1-9 forms and supporting eligibility documentation for each employee who performs work under this Agreement. Vendor shall establish appropriate procedures and controls so that no services will be performed by any employee who is not legally eligible to perform such services. Vendor shall provide City with a certification letter that it has complied with the verification requirements required by this Agreement. Vendor shall indemnify City from any penalties or liabilities due to violations of this provision. City shall have the right to immediately terminate this Agreement for violations of this provision by Vendor. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 15 of 18 M. No Boycott of Israel If Engineer has fewer than 10 employees or the Agreement is for less than $100,000, this section does not apply. Engineer acknowledges that in accordance with Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with a company for goods or services unless the contract contains a written verification from the company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those terms in Section 808.001 of the Texas Government Code. By signing this Agreement, Engineer certifies that Engineer's signature provides written verification to City that Engineer: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the Agreement. N. Prohibition on Bovcottinq Enerqv Companies Vendor acknowledges that in accordance with Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2), the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more, which will be paid wholly or partly from public funds of the City, with a company (with 10 or more full-time employees) unless the contract contains a written verification from the company that it: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of the contract. The terms "boycott energy company" and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2). To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not boycott energy companies; and (2) will not boycott energy companies during the term of this Agreement. O. Prohibition on Discrimination Aqainst Firearm and Ammunition Industries Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1), the City is prohibited from entering into a contract for goods or services that has a value of $100,000 or more which will be paid wholly or partly from public funds of the City, with a company (with 10 or more full-time employees) unless the contract contains a written verification from the company that it: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate during the term of the contract City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 16 of 18 against a firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government Code (as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1). To the extent that Chapter 2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor certifies that Vendor's signature provides written verification to the City that Vendor: (1) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade association during the term of this Agreement. City of Fort Worth, Texas Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 Page 17 of 18 Executed effective as of the date signed by the Assistant City Manager below. FORT WORTH: City of Fort Worth v rDana Bu rghdoff a(Apr 2024m CDT'. By. Name: Dana Burghdoff, AICP Title: Assistant City Manager Date: Apr 10, 2024 Approval Recommended: Name: Marilyn Marvin Title: Interim Director, PMD. Attest: o� Fpq ThpPp p�0o �9�d Pa Boa �l,o * p �, N Qpan aE4p5oo By: Name: Jannette Goodall Title: City Secretary VENDOR: R.L. Woods & Associates, LLC. Digitally signed by Renate L Woods Date: 2024.03.21 16:39:52-05'00' By: Name: Renate' L. Woods, P.E. Title: Principal Date: March 21, 2024 Contract Compliance Manager: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. By: 4�4 Name: Nikita N. Watts Title: Sr. Capital Projects Officer Approved as to Form and Legality: 4)� Douglas Black (Apr5, 202416:46 CDT) By. Name: Doug Black Title: Senior Assistant City Attorney Contract Authorization: M &C: n/a OFFICIAL RECORD City of Fort Worth, Texas CITY SECRETARY Standard Agreement for Engineering Related Design Services Revised Date: 9/27/2021 FT. WORTH, TX Page 18 of 18 F I D: 10100-0213020-5610900 R. L. Woods & Associates, LLC Structural and Forensic Engineering 1151 W. Pioneer Pkwy Arlington, Texas 76013 817-277-6686 www.rlwaengineers.com February 23, 2024 Mr. Brian Glass Assistant Director Property Management Department City of Fort Worth 401 West 13t' Street Fort Worth, TX 76102 Reference: Mod 1 Additional Service — Building Envelope Assessment 512 W. 4' Street, Fort Worth, Texas Dear Mr. Glass: R L Woods & Associates, LLC is pleased to provide this additional service proposal to provide a building envelope assessment of the referenced building. The building envelope assessment would be subcontracted to Building Envelope Consultants, LLC and RLWA would assist with that effort. See attached proposal from BEC for additional information on scope of services to be provided. Based upon our understanding of the project requirements, we propose the following Scope of Services and Basis of Compensation: I. SCOPE A. BEC to provide building envelope envelop assessment. B. RLWA to assist with assessment, providing background information and coordination of building and roof access, and oversight of these subcontracted services. II. LIMITATION OF SCOPE The scope of our services does not include: A. Any other services not specifically listed in the scope of services above. COMPENSATION: BEC Scope: Stipulated Sum of $10,013.00 RLWA Sco_ue: Sti_ulated Sum of $ 2.500.00 Total $12,513.00 Sincerely, R L Woods & Associates Jwot:f &)OVLO Renate' L. Woods, P.E. Principal PROFESSIONAL SERVICES PROPOSAL FOR BUILDING ENVELOPE CONSULTING SERVICES PRE -PURCHASE ENVELOPE EVALUATION CITY OF FORT WORTH 512 4T" STREET FORT WORTH, TEXAS PREPARED FOR: R.L. Woods & Associates, LLC 1151 Pioneer Parkway Arlington, TX 76013 Ia047_104mi __yE Building Envelope Consultants, LLC 17920 Huffmeister Road Cypress, Texas 77429 FEBRUARY 23, 2024 BEC Proposal No.: P-24-005 L m' BUILDING ENVELOPE CONSULTANTS, LLC February 23, 2024 R.L. Woods & Associates, LLC Structural and Forensic Engineering 1151 W. Pioneer Parkway Arlington, TX 76013 ATTN: Ms. Renate L. Woods, P.E, President RE: Proposal for Building Envelope Consulting City of Fort Worth — Future Library Building 512 4t" Street Fort Worth, Texas BEC Proposal No.: P-24-005 Dear Ms. Woods: In accordance with your request, Building Envelope Consultants, LLC (BEC) is pleased to submit the following proposal for envelope consulting services, which includes a pre- purchase visual envelope evaluation of the above referenced property. The facility consists of a five -story building with multiple roof areas, unknown roof system types and wall waterproofing system types. The building is currently recorded as a Texas Historical Landmark. The intended future use of the facility is used as a public library. BEC's services shall be limited to those described herein. All access to the roofs and grounds shall be provided by the RLWA. Structural and mechanical engineering evaluations are not included in our services. All services performed by BEC in relation to this project shall be at the direction of RLWA. BEC shall coordinate all document format and delivery as directed and/or provided by RLWA. The R.L. Woods & Associates, LLC (RLWA). shall provide any previous roof system design and/or warranty information prior to our visit. No cores will be taken of the roof system if the roof is under warranty. If the roof is found to be under warranty and cores are deemed necessary, repairs must be made by a manufacturer's approved contractor and shall be at the expense of the owner Environmental, Structural and/or MEP engineering services are not included in our services. If Environmental, Structural or MEP services are requested to be performed through BEC, an additional or revised proposal will be provided upon request of RLWA. City of Fort Worth Pre -Purchase Envelope Evaluation Project February 23, 2024 Page 2 SCOPE OF SERVICES Visual Roof and Wall Evaluation Purpose The purpose of the pre -purchase visual roof and wall evaluation is as follows: • To determine the condition of the existing interior foundation wall leaks, roof and wall systems. This information will be used to develop recommendations for renovations, repairs and/or replacement activities which may be required. • To gain an overview of the current condition of the existing roof and wall systems. • To document the any existing damages or other conditions of the roof and wall systems which may factor into the purchase of the property. • Develop a preliminary budget estimate of anticipated repairs or replacement activities. Note: Destructive investigations into the wall assemblies will not be performed. Should they be deemed necessary or recommended a separate proposal for those services will be provided. No cores will be taken of the roof system if the roof is under warranty. If the roof is found to be under warranty and cores are deemed necessary, repairs must be made by a manufacturer's approved contractor and shall be at the expense of the owner. Scope The scope of the Visual Roof and Wall Evaluation shall include: • Observations of the perimeter conditions of the roof, including base flashings, counterflashings, coping, perimeter walls, masonry and fascia. • Observations around equipment to include flashing, caulking, traffic patterns, drainage and contaminates. • Observations around rooftop penetrations to including flashing and drainage. • Observations of expansion joints and control joints located in the roof. • Observations of the general drainage characteristics of the roofs. • Observations of the existing roof top equipment as they relate to the interface with the roof system. • Observations of the masonry, concrete and other wall surfaces. • Observations around windows, doors, vents and other openings or penetrations in the walls. • Observations of the interior of the foundation walls to identify possible below grade leaks. • Review of available architectural plans and details as provided by Owner. • Development of general budgets for the remedial work required based on the information gathered during the evaluation. • Photographs of typical roof conditions and problem areas. City of Fort Worth Pre -Purchase Envelope Evaluation Project February 23, 2024 Page 3 • Evaluation of the walls is to be done from the ground level. Should additional evaluation be required by manlift a separate proposal will be provided for those services. Note: Testing of existing materials for the presence of asbestos is not included in the scope of services. The evaluation services are not to be considered a forensic study of existing conditions nor do they include structural engineering analysis of existing conditions. No other destructive investigation or repairs are included in the current services but may be recommended in the report. Access shall be provided by the Owner to all roof areas and wall areas as necessary. Estimates of additional charges shall be provided in advance. Written Report The results of the Visual Roof and Wall Evaluation including observations, conclusions, recommendations, and photographs will be presented in a written report. Items in the reports shall include, but will not be limited to: • Discussion of observations, findings and deficiencies associated with the interior foundation wall leaks, roof and walls including representative photos of the conditions. • A recommended general scope of work for the repair of the foundation walls, roof system due to water infiltration, including the various repair options available. • A recommended general scope of work for the repair or replacement of the roof systems including the various repair or replacement options available. • A recommended general scope of work for the repair or renovation of the exterior walls, including the various repair options available. • Impacts or implications of being a registered historical building. • Budget estimates for the various repair/replacement options. • Recommendations for any additional services required, but not included in the forgoing scope of work, that may be warranted by the results of the evaluation. PROFESSIONAL FEES Buildinq Envelope Consultinq It is proposed that the fee for Visual Roof and Wall Evaluation services be based on a lump sum and that the work be performed pursuant to the BEC General Conditions. Copies of the BEC Schedule of Services and Fees and the BEC General Conditions are attached herewith and are incorporated into this proposal should additional services be required. Refer to the schedule of proposed fees and allowances. One electronic copy shall be provided to RWLA for their use. City of Fort Worth Pre -Purchase Envelope Evaluation Project February 23, 2024 Page 4 SCHEDULE OF PROPOSED FEES AND ALLOWANCES Any change from the estimated quantities shown below will constitute a corresponding change in estimated costs. Consultinq Services Envelope Evaluation Services (lump sum) ..................................................... $ 9,450.00 *Travel Charges (Mileage and Per Diem Fees for a 1-day trip) ....................... $ 563.00 Total $10,013.00 Notes: • The above fees do not include Environmental, Structural or MEP services. Should additional services be required, in connection with any litigation involving this matter, depositions or court appearances, such additional service shall also be performed pursuant to the attached General Conditions and the fee for such additional services shall be according to BEC's then current Schedule of Services and Fees with a multiplier of 2.0 applied. Additional Unit Price Services Building Envelope Consultant............................................................... $ 155.00 per hour Project Manager.................................................................................... $ 155.00 per hour Quality Assurance Observer................................................................. $ 88.00 per hour Secretarial Services.............................................................................. $ 58.00 per hour CADD Services..................................................................................... $ 102.00 per hour Mileage per vehicle...............................................................................$ 0.65 per mile Reimbursable Expenses and Services .................................................. $ Cost plus 10% INVOICES WILL BE SUBMITTED RWLA BY THE FIRST WORKING DAY OF EACH MONTH BY BEC. PAYMENT FOR ALL INVOICES SHALL BE DUE WITHIN 30 DAYS UPON RECEIPT OF INVOICES. Should additional services be required, in connection with any litigation involving this matter, depositions or court appearances, such additional service shall also be performed pursuant to the attached General Conditions and the fee for such additional services shall be according to BEC's then current Schedule of Services and Fees with a multiplier of 2.0 applied. CLOSING BEC provides a complete range of Building Envelope Consulting Services additional to those listed in the Schedule of Services and Fees. Your project can be provided with the following: City of Fort Worth Pre -Purchase Envelope Evaluation Project February 23, 2024 Page 5 • Building Envelope Evaluation Services • Project Management • Quality Assurance Observations and Installation Monitoring • Development of Construction Documents • Bid Document Development and Assistance • Management and Maintenance programs BEC will proceed with scheduling the work on the basis of your written authorization, so please sign and return the enclosed copy of this proposal intact. BEC appreciates the opportunity to offer its services to your project. You will be contacted within five days to answer any questions you may have, concerning the proposal and the services BEC can provide your project. Respectfully submitted, BUILDING ENVELOPE CONSULTANTS, LLC Y Val A. Kuntz Vice President Attachments: BEC Schedule of Services and Fees BEC General Conditions CLIENT AGREEMENT SIGNATURE AGREED TO THIS DAY OF , 20 BY: TITLE: FIRM: BUILDING ENVELOPE CONSULTANTS, LLC Schedule of Services & Fees Effective January, 2024 Consulting Consulting and technical services for visual inspections, specifications, field supervision, data analysis, failure analysis, evaluation, recommendations, reporting and consultation, infrared and nuclear nondestructive testing: Principal, per hour....................................................................................................................................... $ 185.00* Envelope Consultant/Senior Project Manager, per hour............................................................................... $ 155.00* Quality Assurance Observer per hour..........................................................................................................$ 88.00 CADDTechnician, per hour..........................................................................................................................$ 102.00 Secretarial Services, per hour......................................................................................................................$ 58.00 *Litigation Support; deposition through trial...........................................................2 times base rate, $1,000/day minimum Quality Assurance Observation Quality assurance monitors to observe construction/installation for compliance with the plans and specifications: Quality Assurance Observer, per hour..........................................................................................................$ 88.00 Testing Field Roof Cuts, plus personnel rates.............................................................................................................$ 180.00 Roof Cut Analysis, ASTM D2829, D3617, per cut..........................................................................................$ 500.00 Roof Core Analysis, per core..........................................................................................................................$ 15000 Moisture Content, Insulation, per specimen...................................................................................................$ 100.00 Delmhorst Moisture Probe, per test................................................................................................................$ 50.00 Aggregate Sieve Analysis, per sample...........................................................................................................$ 300.00 Fasteners Pull Tests, single test, plus personnel rates...................................................................................$ 300.00 Additionaltests, each..............................................................................................................................$ 100.00 Surveys Initial Maintenance Survey, minimum charge................................................................................................$1,800.00 Annual Maintenance Survey, minimum charge.............................................................................................$1,800.00 Pre -Design Visual Survey, minimum charge.................................................................................................$1,800.00 Equipment InfraredEquipment, per day............................................................................................................................$ 500.00 Infrared Mobilization, per job...........................................................................................................................$ 500.00 CapacitanceMeter, per day.............................................................................................................................$ 100.00 Travel Mileage Charge, per mile, (applicable when site is more than 50 miles from office) .......................................$ 0.65 Minimum Trip Charge, (applicable when site is more than 35 miles from office, excludes personnel rates) .. $ 250.00 All other "Travel Related Expenses" will be provided at cost. Remarks 1. Services and/or Fees not listed above will be quoted upon request. 2. Invoices will be submitted once a month for services performed during prior month. Client agrees payment will be made within 30 days of receipt of Invoice. 3. The above unit prices are applicable for one (1) year from the date of this proposal and are subject to change without notice thereafter. 4. The above prices are subject to a five (5) percent increase one year from the date of this proposal. 5. The prices listed above include electronic copies of all design documents and reports. Hard copies will be billed at cost of 10% of printing and delivery costs. 6. Overtime rates will be 1.5 times the hourly rate for services performed over forty (40) hours per week - Monday through Saturday; Overtime rates will be 2.0 times the hourly rate for services performed on Sundays and holidays. 7. Standby time due to delays beyond our control will be charged at the applicable hourly rate with an 8-hour minimum. GENERAL CONDITIONS 1. PARTIES AND SCOPE OF WORK: Building Envelope Consultants, LLC (hereinafter referred to as "BEC")shall include said company, or its particular division or affiliate performing the work. Work" means the specific consulting, observation, testing, or other service to be performed by BEC as set forth in BEC's proposal, the client's acceptance thereof and these General Conditions. "Client" refers to the person or business entity ordering the work to be done by BEC. If the client is ordering the work on behalf of another, the client represents and warrants that the client is the duly authorized agent of said party for the purpose of ordering and directingsaid work. Unless otherwise stated in writing the client assumes sole, responsibility for determining whether the quantity and the nature of the work ordered by the client is adequate ana sufficient for the clients intended purpose. Client shall communicate these General Conditions to each and every third party to whom the client transmits any part of BEC's work. BEC shall have no duty or obligation to any third party greater than that set forth in BEC s proposal client's acceptance thereof and these General Conditions. The ordering of work from BEC shall constitute acceptance of the terms of BffC's proposal and these General Conditions. 2. TESTS AND OBSERVATIONS: Client shall cause all tests and observations of the site, materials, and work performed by BEC or others to be timely and properly performed in accordance with the plans, specifications, and contract documents, and BEC's recommendations. No claims for loss, damage or inj1ury shall be brought against BEC by client or any third party unless all tests and observations have been so performed and unless BEC's recommendations have been followed. Client agrees to indemnify, defend and hold BEC, its officers, employees, and agents harmless from any and all claims, suits, losses, costs and expenses, including,but not limited to, court costs and reasonable attorney's fees in the event that all such tests and observations are not so performed or BEC's recommendations are not so followed except to the extent that such failure is the result of the negligence, willful orwanton act or omission of BEC, its officers, agents or employees. BEC may, in the course of a roof investigation, perform roof cuts ("cuts") as part of the investigation. Client agrees to provide a roof contractor of clients choice to make such cuts to remove samples as directed by BEC personnel; and to promptly make necessary repairs. In the event that a roof contractor is not soprovided by client, client agrees that BEC may make and remove such cuts as BEC deems necessary in the course of the investigation. Roof cut areas will be temporarily patched by BEC personnel. Client agrees to pay for the costs of materials and labor needed for any and all temporary patches and will hold BEC harmless for any and all damages to the roof systems and the building and its contents which may arise from removal and repairing of roof cuts. 3. SCHEDULING OF WORK: The services set forth in BEC's proposal and client's acceptance will be accomplished in a timely workmanlike and professional manner by BEC personnel at the prices quoted. If BEC is required to delay commencement of the work or if, upon embarking upon its work BEC is required to stop or interrupt the progress of is work as a result of changes in the scope of the work requested by the client, to fulfill the requirements of third parties, interruptions in the progress of construction, or other causes beyond the direct reasonable control of BEC, additional charges will be applicable and payable by client. 4. ACCESS TO SITE: Client will arrange and provide such access to the site as is necessary for BEC to perform the work. BEC shall take reasonable measures and precautionslo minimize damage to the site and any improvements located thereon as the result of its work or the use of its equipment; however, BEC has not included in its fee the cost of restoration of damage which may occur. If client desires or requires BEC to restore the site to its former condition, upon written request BEC will perform such additional work as is necessary to do so and client agrees to pay to BEC the cost thereof. 5. DAMAGE TO EXISTING MAN-MADE OBJECTS: Unless BEC has assumed in writing the responsibility of locating subsurface or latent conditions client agrees to indemnify and save BEC harmless from all claims, suits, losses, costs and expenses, including reasonable attorney's fees as a result of persona injury, death or property damage occurring with respects to BEC performance of its work, and arising from subsurface or latent conditions or damage to subsurface or latent objects, structures, lines or conduits where the actual or potential presence and location thereof was not revealed to BEC by client. 6. RESPONSIBILITY: BEC's work shall not include determining, supervising or implementing the means, methods, techniques, sequences or procedures of construction. BEC shall not be responsible to evaluating, reporting or affecting job conditions concerning health, safety or welfare. BEC's work or failure to perform same shall not in anyway excuse any contractor, subcontractor or supplier from performance of its work in accordance with the contract documents. 7. SAMPLE DISPOSAL: Unless otherwise agreed, test specimens or samples will be disposed immediately upon completion of the test. 8. PAYMENT: Client shall be invoiced once each month for work performed during the preceding period. Client agrees to pay each invoice within thirty (30) days of its receipt. The client further agrees to pay interest on all amounts invoiced and not paid or objected to for valid cause within said thirty (30) day period at the rate of eighteen (18) percent per annum (or the maximum interest rate permitted under applicable law, whichever is tthe lesser) until paid. Client agrees to pay BEC's cost of collection of all amounts due and unpaid after sixty (60) days, including court costs and reasonable attorney's fees. Failure to make payment within thirty (30) days of invoice shall constitute a release of BEC from any and all claims which client may have, either in tort or contract, and whether known or unknown at the time. 9. TERMINATION: This Aggreement may be terminated by either party upon seven days prior written notice. In the event of termination, BEC shall be compensatedby client for all services performed up to and including the termination date, including reimbursable expenses and for the completion of such services and records as are necessary to place BEC's files in order and/or protect its professional reputation. 10. WARRANTY: BEC's service will be performed, its findings obtained and its reports prepared in accordance with its proposal, client's acceptance thereof, these General Conditions, and with generally accepted principles and practices. In performing its professional services, BEC will use that degree of care and skill ordinarily exercised under similar circumstances by members of its profession. This warranty is in lieu of all other warranties or representations either express or implied. Statements made in BEC reports are opinions based upon engineering judgment and are not to be construed as representations of fact. 11. INDEMNITY: Subject to the foregoing limitations, BEC agrees to indemnify and hold client harmless from and against any and all claims suits costs and expenses including reasonable attorney s fees and court costs arising outof BEC's negligence to the extent of BEC's negligence. Client shall provide the same protection to the extent of its negligence. In the event that client or client's principle shall bring any suit, cause of action, claim or counterclaim against BEC, the party initiating such action shall pay to BEC the costs and expenses incurred by BEC to investigate, answer and defend it, including reasonable attorney's and witness fees and court costs to the extent that BEC shall prevail in such suit. 12. ARBITRATION: Anything contained in any other contract document notwithstanding BEC shall not be bound by any provision or agreement 1) requiring or providing for arbitration of disputes or controversies arising ouf of BEC's work or these general conditions (b) wherein BE CC waives its rights to a mechanic's lien, or (c) conditioning BEC's right to payment upon payment by a third party. 13. PROVISIONS SEVERABLE: In the event any of the provisions of these General Conditions should be found to be unenforceable, it shall be stricken and the remaining provisions shall be enforceable. 14. ENTIRE AGREEMENT: This Agreement constitutes the entire understanding of the parties, and there are no representations, warranties or undertaking made other than as set forth herein. This Agreement may be modified only in writing, signed by each of the parties hereto.