Lone Star College (LSC) OGC-S Contract for Design Professional Services. Executed and entered into the day of in the year Two Thousand and

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1 Lone Star College (LSC) Contract for Design Professional Services Executed and entered into the day of in the year Two Thousand and between Lone Star College ( LSC ) and (the Design Professional ) Regarding (the Project ) Whereas, LSC desires to retain the Design Professional to perform professional services, and the Design Professional desires to perform said services pursuant to the terms set forth herein; and Whereas, in choosing to retain the Design Professional under this Agreement, LSC is materially relying upon the Design Professional's representations that it is fully qualified to perform said services; Now, therefore, in consideration of the mutual covenants and conditions contained herein, the Parties agree as follows: Page 1 of 23

2 Scope of Engagement 1.1. The Design Professional shall provide professional architectural and engineering design services in accordance with this Agreement and shall provide all services set forth in its proposal ( Proposal ) dated, attached hereto as Exhibit A and incorporated herein by reference, and LSC s Request for Qualifications 1 attached as Exhibit B and incorporated hereto by reference. In the case of conflicts or ambiguities between this Agreement and the Design Professional's Proposal, the language most favorable to LSC (at LSC s sole discretion) shall govern, control and prevail. Any ambiguities in the Proposal not otherwise resolved by mutual written agreement of the Parties will be resolved in favor of LSC The Design Professional shall provide comprehensive services including, but not limited to, architectural services, civil, structural, mechanical, electrical and plumbing engineering, interior design, and interior signage, landscape architecture, construction administration, and all specialty consultants as required by LSC. The Design Professional shall be responsible for campus roads and parking as required by each assigned Campus Site project location; utility infrastructure including chilled and hot water connections to each new facility from the campus central plant where required; exterior signage; common area landscape architecture; and coordination with LSC s other professionals to assure compatible design and construction documents. The Design Professional shall become familiar with the site conditions, including preparation of applicable Record Documents of renovation and building expansion projects. The Design Professional shall first confirm with LSC if Record Documents exist. The Design Professional shall attend and assist LSC at all required meetings and shall be responsible for recording and distributing minutes of all proceedings during the Design Phases The Design Professional shall furnish all labor, services, supplies, materials and equipment required to complete the work in accordance with this Agreement. The Design Professional agrees to provide the services outlined in this Agreement with the Project Team members (Bond Program Manager, Project Directors, Construction Managers, Contractors, Commissioning Agents, Surveyors, Material Testing, Geotechnical, Technology Design Consultant, Security Design Consultant, FF&E Vendors, Program Management Software provider and all future vendors that will need to be contracted as needed by LSC) and Firms presented in the Design Professional s Proposal attached hereto as Exhibit A and incorporated herein by reference. LSC must approve in advance and in writing changes or substitutions to the Project Team. Design Professional shall submit all Bond Program correspondence and related electronic information into LSC s purchased and approved Program/Project Management Software (as part of Stage One and Stage Two Comprehensive Services scope of work). Design Professional electronic drawings should be in the latest approved BIM (Building Information Modeling Revit, AutoCAD 3-D are acceptable) format and that the BIM files and its properties be LSC Facilities Management Software compatible for equipment information and model property retrieval These services shall be provided in two (2) Stages, each Stage composed of various Phases. The Design Professional shall not proceed to the next Stage without LSC s written approval. A summary of the standard services associated with each Phase is set forth on Exhibit C attached hereto and further described in Sections 1.5 and 1.6 below Stage One comprehensive services include the Schematic Design Phase along with assisting 1 or RFP as long as it is not based on competitive pricing under Gov. Code Page 2 of 23

3 LSC and the Program Manager in budget and schedule development. Design professionals will provide programming services The Programming Phase shall produce a document describing gross facility areas, space requirements, approximate assignable areas, spatial relationships and adjacencies. This comprehensive document shall provide a narrative of the program as well as the tabular data and illustrations required to fully describe the program and its components. Programming (and all other Design Phases) shall comply with all LSC Standards including but not limited to Policies & Procedure Manual, Design Standards, BIM Standards, Technology/Security Standards, Roofing Standards, Audio/Video Standards The Schematic Design Phase shall include development of the Project site plan, floor plans, elevations, selection of all building systems, and selection of major construction materials. Schematic Design documents shall completely describe and depict Project requirements in sufficient detail to allow approval by LSC. These details shall include some combination of study models, perspective sketches or digital modeling. The Design Professional shall assist LSC with updating the preliminary Project budget and schedule Stage Two comprehensive services, if authorized in writing by LSC, shall include the Design Development Phase, the Construction Documents Phase, Bidding Phase and the Construction Administration Phase. The Design Professional is to also coordinate with both LSC and its Program and Construction Managers for all Design and Bid Phase Budget Verifications The Design Development Phase shall produce documents that define and describe the size, character and location of all Facility systems, components, finishes and other items that may be appropriate; satisfy program requirements; comply with the Campus Master Plan and LSC Design Standards; and comply with all applicable codes and regulations. The Design Professional shall provide detailed plans, elevations, sections, typical details and outline specifications of all building components and systems. Value engineering and lifecycle cost studies, environmentally responsible design alternates and other items to aid in LSC decision making shall be provided as required by LSC. Documents shall include, but not be limited to, criteria, evaluation of alternates and recommendation of structural systems, HVAC systems, electrical systems and energy conservation alternates. The Design Professional, in coordination with the Project Director, Construction Manager and Program Manager, shall assist LSC with development of probable cost to verify that the Project remains within the established budget The Construction Document Phase services shall result in a comprehensive set of construction drawings and specifications in sufficient detail as determined by LSC for procurement of construction services and construction of the Project including the preparation and certification of a Storm Water Pollution Prevention Plan. The Design Professional shall also assist LSC with an update of probable cost, preparation of procurement packages, value engineering and bid alternates development, if required. The Design Professional shall be responsible for submissions to and coordination with governing bodies having jurisdiction over the Project and revisions and modifications to the documents mandated by such governing bodies if required. Final Construction Documents shall be reasonably coordinated and free of material errors or omissions, and the Design Professional shall document corrections in a timely manner. Page 3 of 23

4 1.6.3 Bidding Phase services shall include, but not be limited to, assisting with bidder list development; printing and distributing bid documents; attending pre-bid conference and general contractor interviews; preparing responses to questions from prospective bidders; providing clarification and interpretation of bid documents; reviewing bid alternates, exceptions and substitutions; and assisting with evaluation of contractor proposals and contract negotiations Construction Administration Phase services shall include, but not be limited to, attendance at regular construction meetings simultaneously with construction observation, preparation of meeting reports as required, review and approval of contractor submittals and pay applications, response to Requests for Information, evaluation of change proposals, coordination of the Owner s Commissioning Agent s scope, preparation of a final punch list and one follow-up punch list, assistance in correction of punch list deficiencies, attendance at Substantial and Final Completion inspections and assistance with Project acceptance and contract close-out activities. The Design Professional shall also conduct a one (1) year warranty inspection with applicable subcontractors, prepare a deficiency report and assist with resolving warranty issues. The Design Professional, and its subcontractors as applicable, shall visit the site at a minimum of weekly intervals and also as needed to respond to construction issues and to determine in general if the work observed is being carried out in accordance with the contract documents; however, the Design Professional shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work. The Design Professional shall report to LSC any known deviations from the contract documents and any defects and deficiencies observed in the work. The Design Professional agrees that its representatives during the construction phase shall be qualified by training and experience to make decisions and interpretations of plans and specifications and shall be empowered by the Design Professional to do so; such decisions and interpretations shall be binding upon the Design Professional as if made by him, and all such decisions shall be confirmed in writing at the earliest reasonable date. The Design Professional shall have no liability for site safety or the means and methods employed by the contractor The Design Professional shall design the Project within the construction budget established by LSC at each Phase of design unless LSC subsequently adjusts the budget in writing. In the event that the design process results in a project where the estimated cost of construction exceeds the established construction budget, the Design Professional shall redesign the Project within the established construction budget at no additional cost to LSC. In the event that the design process results in a project where the estimated cost of construction is under the established construction budget by 10% or more, the Design Professional shall redesign the Project within the established construction budget at no additional cost to LSC. The Design Professional shall provide an estimate of probable costs at the end of Schematic Design and updates at the ends of Design Development and Construction Document Phases. The estimate shall include all aspects of the scope of the Design Professional s responsibilities. Documents used as the basis for the estimates shall include sufficient details and performance requirements to allow estimating with minimal assumptions The Design Professional recognizes that achieving the planned completion date is critical to LSC operations and commits to completing Programming (if provided by the Design Professional) and Schematic Design through Construction Document Phases within calendar days from the written Notice to Proceed by LSC. The Design Professional shall prepare a detailed design schedule by phase including durations for LSC decisions, an Page 4 of 23

5 accelerated design schedule (if requested by LSC), document submissions and approvals to meet this requirement The Design Professional shall provide electronic and media copies of all documentation furnished throughout the Project and/or Program as approved by LSC. Drawings shall be in the most current version of BIM/AutoCAD using industry layering standards. Renderings, photographs and similar graphics shall be in an approved LSC format. Text documents shall be in Word for Windows format. Additionally, the Design Professional shall make available digital copies of bid packages ready electronic distribution to general contractors and other interested parties as directed by LSC. Electronic storage device shall be labeled with the name of the Design Professional firm, the date produced, LSC s project name and number, the stage of design, software and version used and the contents of the electronic storage device. The Design Professional shall also provide.pdf drawings in addition to the BIM/AutoCAD drawings which shall be bound so xref is not required. A copy of all pen tables (.ctb files) shall also be included LSC will hire an independent Commissioning Agent. The Design Professional and its consultants will be required to coordinate with the Commissioning Agent during all Design Phases, Construction Phases and the Commissioning process. The Commissioning Agent will be hired during the Design Phases of the project to assist and advise the Design Professional in developing general specifications to define the Construction Manager and/or Contractor s responsibilities for the Commissioning process and integration with the Mechanical, Electrical and Plumbing design. The Design Professional will be required to coordinate the participation of all its subcontractors/subconsultants with the Commissioning Agent as required by the Owner. The Commissioning Agent will also be required to coordinate with the design professional and its subcontractors and subsconsultants. Design Professional participation in the Commissioning process will be minimal. Conversely, if the contract documents are unclear, ambiguous, or uncoordinated, the Design Professional and subcontractor s participation will increase LSC reserves the right to approve all subcontractors and the conditions of their contracts. The Design Professional s subcontractors shall provide competent and complete support of the Design Professional s services. The Design Professional shall provide LSC with a copy of any draft subcontractor agreement within five (5) days after the receipt of a written request for the agreement from LSC and a final executed subcontractor agreement immediately upon execution LSC intends for the LSC Project Directors to manage the direct day-to-day activities of the Design Professional. The Design Professional agrees to cooperate with all LSC employees, consultants and contractors to achieve project goals and objectives LSC may modify scope of services set forth in this Agreement. All such modifications will be made by a written amendment signed by both parties. Term The Design Professional shall commence the work upon receipt of a fully executed Agreement and a signed Notice to Proceed and shall perform the same in accordance with the time schedule set forth in Design Professional s Proposal, Exhibit A The Parties understand that time is of the essence and agree to perform services and release information under this Agreement in a manner that will not cause undue delay in the Project s progress and completion. Page 5 of 23

6 Compensation and Method of Payment LSC will pay the Design Professional a Fixed Total Contract Amount of Dollars ($ ) per the Schedule of Rates attached hereto as Exhibit C and incorporated herein. LSC will pay the Design Professional an amount for all reimbursable expenses listed in Paragraph 1.20, which reimbursable expenses shall not exceed Dollars ($ ) without LSC s prior written approval LSC, at its sole discretion, upon its acceptance of each phase of the design, Project Budget and Schedule, may authorize the Design Professional in writing to proceed with the subsequent phase The Design Professional shall submit separate monthly invoices for fees and reimbursables, based upon percentage of work completed for each Stage, in form and detail as required by LSC. Each invoice shall indicate, as a minimum, the project name(s) and number(s), and shall separate charges for each project. The Design Professional shall also separate charges for fees and reimbursables and shall indicate the total amount for each amount paid to date, the amount billed and the amount remaining. Hourly fee invoices shall include timesheets with the name, position, hours worked for each person included in the invoice cost and a brief description of the services provided. Invoices for reimbursable expenses shall include copies of all receipts, tickets and other supporting documentation required to establish the amount of reimbursement. The Design Professional shall maintain sufficient records to fully support each invoice. Such records shall be available for inspection as set forth in Paragraphs 1.47 and Each invoice shall include a listing of total payments made to date to each subcontractor and the amount remaining. As part of the final close-out, the Design Professional shall provide an affidavit showing that all subcontractors have been paid in full for any portion of the Project for which their services, labor and materials were provided. Cumulative invoice payments shall not exceed the following percentages at stated milestone: a) Upon approval of Schematic Design Phase 15% b) Upon approval of Design Development Phase 35% c) Upon approval of 100% Construction Documents 75% d) Upon award of Construction Contract 80% e) Upon Owner s Final Acceptance 98% f) Upon the closing of all construction contracts and the approval of record 100% drawings LSC will pay invoices in a reasonable and timely manner, generally within thirty (30) days, unless unusual or extenuating circumstances prohibit such timely payment, but in no event later than sixty (60) days. State law will govern interest on late payments. Should any part of the invoice be in dispute, LSC shall be entitled to withhold payment of that portion of the invoice until the disputed item is resolved. The Parties will attempt to resolve all such disputes expeditiously. The Design Professional agrees to pay all subcontractors and suppliers in a reasonable and timely manner, generally within thirty (30) days, after receipt of payment by LSC LSC may request the Design Professional to perform any or all Additional Services beyond the scope of the Agreement as listed on Exhibit C without invalidating the Agreement. The Page 6 of 23

7 Design Professional shall provide a written proposal for the Additional Services which shall be approved by LSC in advance. The Design Professional shall not proceed with Additional Services without prior written approval The Design Professional shall provide the following services on a reimbursable basis as authorized by LSC. LSC is not subject to state sales tax, and will not pay a mark-up for overhead or profit on these services; consequently the amount of compensation shall be limited to the Design Professional s actual cost before sales tax. Normal and customary expenses not classified as reimbursable expenses in this Agreement shall be included in the Design Professional s fee. Surveyors, Program Manager, Technology Design Consultant, Security Design Consultant, Material Testing, Geotechnical, Commissioning Agent services shall be provided to Architect by LSC under a separate contract (left blank for future use) Reproduction and Distribution of Owner Review and Procurement Document Sets. Owner will procure document sets for Owner s use through its reproduction vendor. Expenses not allowed as reimbursable expenses by Design Professional include plotting, in-house reproduction and printing, phone and computer charges, mileage, parking, postage, delivery services, progress photos, supplies and other items required in the normal course of business Fees charged by applicable authorities for permitting, plan review and construction inspection required by law and regulation Reasonable project-related out of town travel and lodging expenses approved in advance of travel by LSC Any other professional services contracted by LSC as required Intentionally Omitted. HUB Subcontracting Plan The Design Professional shall comply with the HUB Subcontracting Proposal (HSP) submitted with its Statement of Qualifications. Failure to comply with the HSP may constitute a breach of this Agreement. LSC reserves the right to make changes to the HSP with the approval of the Design Professional If at any time during the term of this Agreement, the Design Professional desires to make changes to the approved HSP, the Design Professional shall comply with the good faith effort requirements to solicit HUB subcontractors as demonstrated in the original HSP, submit a revised HSP for that portion of work and obtain LSC s prior written approval. If the Design Professional subcontracts any portion of the work outlined in the Design Professional s approved HSP without LSC s prior written approval, the Design Professional may be deemed to have breached this Agreement If LSC expands the original scope of work through a change order, contract amendment, additional services request or a contract renewal that expands the scope of work, and the Design Professional determines additional subcontracting opportunities exist, the Design Professional shall comply with the good faith effort requirements to solicit HUB subcontractors as demonstrated in the original HSP, submit a revised HSP for that portion of the work, and obtain LSC s prior written approval. If the Design Professional subcontracts Page 7 of 23

8 any portion of the new work without LSC s prior written approval, the Design Professional may be deemed to have breached this Agreement. Standard of Performance The Design Professional s services under this Agreement shall be performed in a manner consistent with the degree of care and skill ordinarily exercised by Design Professionals practicing under the same or similar circumstances. All information provided by the Design Professional shall, therefore, be timely and represent the Design Professional s use of industry standards and the most accurate and current data available. All services shall be supervised by professionals currently licensed in the applicable discipline in the State of Texas, and all contract documents shall bear the seal of a licensed professional in accordance with Texas law The Design Professional shall comply with and require all subcontractors to comply with applicable Federal, State of Texas, and Local laws, regulations and codes. Specifically, the Design Professional and its subcontractors shall use the latest adopted versions of all applicable laws, codes and regulations, including but not limited to, the following: International Building Code (IBC) or other local jurisdiction codes, as required International Energy Conservation Code (IECC) International Fire Code (IFC) International Plumbing Code (IPC) International Electrical Code Administration Provisions (IECAP) International Mechanical Code (IMC) NFPA 101, Life Safety Code (including references to the National Electrical Code) National Fire Protection Association Codes and Standards ANSI/ASME A17.1 Safety Code for Elevators and Escalators ANSI A136.1 Standards for Safe Use of Lasers State Insurance Board requirements governing fire sprinkler systems United States Environmental Protection Agency regulations ASHRAE Standard 90A, B, & C-Energy Conservation in New Building Design United States Department of Health, Public Health Service regulations and guidelines State statues regulating, but not limited to, the following: Asbestos Boilers Control of Radiation Energy Consumption Fire Escapes Fire Alarms Plumbing Fixtures Elevators Page 8 of 23

9 Texas Accessibility Standards of the Architectural Barriers Act, Article 9102, Texas Civil Statutes Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities United States Department of Labor Occupational Safety and Health Administration (OSHA) Regulations Texas Commission on Environmental Quality TPDES General Permit TXR The Design Professional and its subcontractors shall also adhere to LSC s current Campus Master Plan, LSC Design Standards, Uniform General Conditions and Supplementary General Conditions. LSC will provide one (1) copy of each to the Design Professional The Design Professional shall maintain and shall require that its subcontractors, if any, maintain any and all required governmental licenses, certificates, approvals and permits that are required of the Design Professional for the performance of its professional services under this Agreement. The Design Professional agrees to maintain in full force and effect such required licenses and certificates throughout the term of this Agreement not as a reimbursable expense to this contract In the event that the Design Professional fails to comply with the standard of performance as set forth in this Agreement, the Design Professional shall promptly correct, to the satisfaction of LSC, those services provided under this Agreement that are not in compliance at no additional cost to LSC. This will in no way waive any additional remedies LSC might have under Texas law The Design Professional agrees to cooperate with LSC in the correction of the design deficiencies listed below at a cost to be mutually agreed upon and contained in a written amendment signed by both parties: Design revisions that result from LSC changes after LSC has provided written approval of an affected design phase, provided that the revisions are not the fault of the Design Professional, shall be Additional Services. The Design Professional shall be responsible to manage the Project scope throughout the Project to assure it complies with the approved program and LSC Design Standards. Revisions required due to failure of the Design Professional to fully develop the program requirements or to comply with the approved program or LSC Design Standards shall be the responsibility of the Design Professional Design revisions that are required due to changes in laws, statutes, regulations, or requirements after the construction documents have been received and approved by LSC may be considered Additional Services unless the Design Professional either, upon a showing of written evidence, had prior knowledge of the laws, statutes, regulations, or requirements, or could not have reasonably known of required changes. Ownership of Documents 1.31 All Drawings, Specifications, models and other materials prepared or furnished pursuant to this Agreement are prepared specifically for LSC in connection with the Project; and all title, ownership, and copyright privileges to the overall design expressed thereby are hereby assigned to and shall at all times be mutually held by LSC and Design Professional after the condition precedent payment by LSC for each portion of work. Reproducible copies of all drawings, data disk file copies of drawings for CADD, specifications and all other such materials shall, to the extent not previously Page 9 of 23

10 delivered, be promptly delivered to LSC upon demand and payment and thereafter may be used by LSC in whole or part or in modified form for such purposes as it may deem advisable without further employment of, or payment of additional compensation to, the Design Professional or any consultant retained by the Design Professional. The Design Professional may retain a copy of each of such items for information and reference in connection with the performance of its obligations under this Agreement, but shall not use the overall design expressed thereby for any other purpose without the prior written consent of LSC. LSC shall have the right to use any and all documents or items as often as LSC desires; should LSC use said documents or items prepared under the direction of the Design Professional on another project, then in such event, the Design Professional shall have no liability whatsoever for their usage. LSC agrees to release the Design Professional from any liability or responsibility connected with such usage, LSC also agrees to release the Design Professional from all claims, and causes of action arising from such uses. To the extent permitted by the laws and the Constitution of the State of Texas and without waiver of sovereign immunity, LSC further agrees to indemnify and hold harmless the Architect and its consultants from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the Owner s use of the documents and further agrees to remove all registration seals, stamps and other identification of the Design Professional or its consultants from the Drawings and Specifications. The Design Professional and other providers of professional services on this Project shall not be held responsible for any changes or modifications to the drawings and specifications made by LSC or its representatives after termination of this Agreement The Design Professional, or its consultants, does not have the right to include representations of the design of the Project, including photographs of the exterior or interior, among the Design Professional s promotional and professional materials without written permission from LSC. Confidentiality The Design Professional acknowledges and agrees that any Confidential Information disclosed to it, its employees, agents, subcontractors or other representatives pursuant to this Agreement shall be used only for the purposes contemplated in this Agreement, shall be maintained in strict confidence and shall remain LSC s property The term "Confidential Information" means all confidential, trade secret or proprietary information supplied to or obtained by the Design Professional during the course of this Agreement, including technical, engineering, operating and economic information The Design Professional shall refer all requests for interviews, tours, photographs, etc., to LSC s Project Director. All press releases or other publicity must be approved by LSC in writing prior to release. Safety, Security, and Hazardous Material The Design Professional shall direct all of its employees, agents and subcontractors performing services in connection herewith to fully comply with all rules, regulations and other requirements of LSC and any construction contractor or construction manager having jurisdiction over the construction means and methods. The Design Professional shall also comply with applicable laws and governmental regulations pertaining to its employees, agents and subcontractors and shall require its subcontractors to so comply While providing services under this Agreement, the Design Professional and all of its employees and subcontractors shall promptly inform LSC if the Design Professional becomes aware of any unsafe conditions and/or security concerns. Page 10 of 23

11 1.38. Unless otherwise provided in the Agreement, the Design Professional and its subcontractors shall not be responsible for the discovery, presence, handling, removal or disposal of hazardous material or for exposure of persons to hazardous materials or toxic substances at the Project site. However, the Design Professional shall promptly notify LSC if it discovers any hazardous material during its services on the Project. Indemnity and Hold Harmless The Design Professional covenants and agrees to FULLY INDEMNIFY AND HOLD HARMLESS, LSC and its trustees, officers, officials, employees, directors, volunteers from and against any and all costs, claims, liens, damages, losses, expenses, fees, including reasonable costs of defense, fines, penalties, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including but not limited to, personal or bodily injury, death and property damage, made upon LSC Party to the extent caused by the Design Professional s performance of its services and/or activities under this Agreement, including any acts or omissions of the Design Professional, any agent, officer, director, contracted representative, employees, consultant or Subcontractor of the Design Professional, and their respective officers, agents, employees, directors, representatives and all Design Professional s subcontractors, vendors, suppliers or other entities who may perform services and/or activities while in the exercise of performance of the rights or duties under this Agreement The Design Professional shall also indemnify LSC s employees, and the Project Director (employee) under the terms set forth herein The Design Professional shall promptly advise LSC in writing of any claim or demand against LSC or Design Professional known to the Design Professional related to or arising out of the Design Professional s activities under this Agreement The Design Professional s duty to promptly advise of claims or demands also applies to claims or demands against LSC s Program Manager Except as otherwise provided, the provisions of this Indemnification are solely for the benefit of the parties hereto and are not intended to create or grant any rights, contractual or otherwise, to any other person or entity. Insurance The Design Professional shall maintain insurance coverage in the types and amounts listed below. The Design Professional shall also require its subcontractors to maintain similar levels of insurance Commercial General Liability Coverage: The Design Professional shall provide and maintain, and shall require all subcontractors to provide and maintain, Commercial General Liability (CGL) insurance to cover claims for damages for personal injury, bodily injury (including wrongful death), property damage, products/completed operations and contractual liability. The coverage will provide protection for all operations by the Design Professional or any subcontractor or by anyone directly or indirectly employed by either of them. The minimum amount of coverage shall be as follows: $1,000,000 per occurrence $2,000,000 general aggregate $2,000,000 products and completed operations aggregate Coverage shall be on an "Occurrence Form" and include coverage extended to apply to completed operations and explosion, collapse, underground hazards. Page 11 of 23

12 The insurance certificate(s) shall indicate that the Commercial General Liability policy carries an endorsement which names the Lone Star College System (LSC) and their respective trustees, directors, officers, employees, agents, and volunteers, as additional insureds Excess/Umbrella Insurance. The Design Professional shall provide and maintain excess/umbrella liability insurance to provide limits in excess of underlying primary policies for an amount of not less $5,000, Comprehensive Automobile Liability: The Design Professional shall provide and maintain, and shall require all subcontractors to provide and maintain, insurance to cover claims for owned, hired, and non-owned vehicles, with a combined bodily injury (including death) and property damage minimum limit of $1,000,000 per occurrence. No aggregate shall be permitted for this type of coverage. Such insurance is to include coverage for loading and unloading hazards. The coverage shall include protection of the Design Professional and subcontractors or anyone directly or indirectly employed by them Professional Liability Insurance: The Design Professional, at Design Professional s own cost and expense, shall provide and maintain, and shall require all subcontractors to provide and maintain, insurance to cover claims for each of their respective negligent acts and/or errors and/or omissions that may arise from the work performed by the Design Professional, subcontractors, or anyone directly or indirectly employed by them. Professional Liability Insurance (Occurrence Form) or if the insurance is written on a claims-made form, shall continue for ten (10) years following the completion of the performance or the attempted performance of the provisions of this agreement. The insurance shall have a retroactive date of placement prior to or coinciding with the effective date of this agreement. If the coverage is canceled or non-renewed and not replaced with another claims-made policy form with a retroactive date prior to the effective date or coinciding with the effective date of this agreement the Design Professional must purchase Extended Reporting ( Tail ) coverage for a minimum of ten (10) years following the completion of the performance or the attempted performance of the provisions of this agreement, providing coverage in the amount of: (a) For a major project or continuing services projects where the aggregate Construction Price is greater than $2,000,000: $5,000,000 per claim and aggregate liability limit is required; (b) For a major project or continuing services projects where the aggregate Construction Price is $2,000,000 or less: $2,000,000 per claim and aggregate liability limit is required Worker s Compensation Insurance: The Design Professional shall provide and maintain, and shall require all subcontractors to provide and maintain, during the life of the Agreement, Worker's Compensation Insurance that complies in all respects with the laws of the State of Texas Employers Liability Insurance, including Occupational Disease: The Design Professional shall provide and maintain, and shall require all subcontractors to Page 12 of 23

13 provide and maintain, Employers Liability Insurance, including Occupational Disease coverage, with limits of liability of not less than $1,000,000 each accident and $1,000,000 each employee All insurance policy maintained by the Design Professional must be endorsed in writing acceptable to LSC as follows: Waiver of Subrogation shall be granted in favor of Lone Star College on all policies All insurance (except Professional Liability) shall be issued on an occurrence form. All coverages are to be procured through A- VIII rated insurance carriers that are authorized to do business in the State of Texas as admitted carriers, and all coverage s placed are subject to LSC approval as to form and content, as well as carrier. All required coverage s shall be obtained and paid for by the Design Professional and its subcontractors at no additional cost to LSC Insurance shall apply as primary insurance/non contributory with respect to any other insurance or self insurance programs available to the LSC. Reference to the as primary/noncontributory endorsement to the policy shall be specified in the Certificate of Insurance and a copy attached to the Certificate of Insurance LSC shall be named as an Additional Insured on a Primary and Non Contributory basis for ongoing and completed operations on all policies except workers compensation. Reference to the Additional Insured endorsement to the policy shall be specified in the Certificate of Insurance and a copy attached to the Certificate of Insurance The Design Professional shall furnish LSC, and require its subcontractors to furnish LSC, with the following insurance forms: ACORD Form 25-S, Certificates of Liability Insurance for all liability coverage; and ACORD Form 27, Evidence of Property Insurance for all property coverage. These forms must: Indicate that the Design Professional and/or LSC and other subcontractors (where required) are covered by the required insurance showing type, amount, class of operations covered, effective dates and dates of expiration of policies; State the amounts of all deductibles and self-insured retentions; Set forth notice requirements for cancellation, material change or non-renewal of insurance in accordance with of this contract; Be accompanied by executed and original policy endorsements; and Be provided to LSC prior to its issuance of a Notice to Proceed Policies must be endorsed to provide a minimum of thirty (30) days advance notice of cancellation, non-renewal, or material change of policies. Reference to the Cancellation endorsement to the policy shall be specified in the Certificate of Insurance and a copy attached to the Certificate of Insurance. Page 13 of 23

14 1.43 Upon receipt of any notice of cancellation or alterations, the Design Professional and subcontractors shall, within ten (10) days thereafter, procure other policies of insurance that are acceptable to LSC and similar in all respects to the policy or policies about to be canceled or reduced It is understood and agreed that the insurance set forth herein is required in the public interest and that LSC does not assume any liability for acts or omissions of the Design Professional, any subcontractor or their employees or agents in the performance of the Agreement. Audits and Records 1.45 LSC will have the right to inspect all information created or maintained by the Design Professional or its subcontractors relating to the Project, including but not limited to, all correspondence, books, records, documents and electronic data. Such information shall be available and open to review, inspection, and audit by LSC or its representatives at any place(s) where such information is kept or at LSC place of business if requested by LSC. Access to these records shall be provided at no expense to LSC The Design Professional and its subcontractors shall keep all such records until the final completion of construction and then for a minimum of five (5) years thereafter. The Design Professional shall provide in all of its agreements and subcontracts a written statement indicating that LSC will have the right to audit and inspect all such information under the conditions set forth herein. Termination 1.47 Termination for Cause. This Agreement may be terminated by either Party, upon fifteen (15) days written notice to the other, for a material failure or refusal to perform in accordance with this Agreement Termination for Convenience. LSC may also terminate this Agreement without cause and at any time if it determines that it will not be beneficial to proceed with all or part of the Project. Termination under this provision will be effective as of the date of the notice of termination Upon termination, LSC will pay the Design Professional for all authorized services provided and all actual expenses and charges outstanding at the time of termination based on percentage of work completed. In addition, if LSC Terminates for Convenience in accordance with Paragraph 1.50, LSC will reimburse the Design Professional for any reasonable and approved cancellation charges applicable to materials or equipment on order or rental at the time of cancellation. Regardless of whether LSC terminates for cause or convenience, LSC will not pay the Design Professional for loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. Termination payments shall be limited by percentages listed in Paragraph 1.17 for each phase Upon receipt of notice of termination, unless the notice directs otherwise, the Design Professional shall discontinue all services and work, placing orders or entering into contracts for supplies, services, facilities and materials, and shall immediately cancel all existing subcontracts, orders and contracts that are chargeable to this Agreement The Design Professional shall furnish LSC with copies of all drawings, specifications, reports and any other Project documents and materials prepared in accordance with this Agreement up to and through the date of termination, regardless of the state of completion Page 14 of 23

15 of such documents and material, within thirty (30) days of receipt of notice of termination. Notices 1.52 Any notice required or permitted to be given under this Agreement shall be in writing and shall be delivered, served or mailed to the following designated representative(s). If the notice is mailed, it shall be deemed delivered within forty-eight (48) hours after the same is post-marked. Either Party may change its designations by written notice to the other. If to LSC: If to the Design Professional: Lone Star College Vice Chancellor Finance and Operations/CFO 5000 Research Forest Drive The Woodlands, TX With a copy to: Lone Star College Chief Operating Officer and General Counsel/CLO 5000 Research Forest Drive The Woodlands, TX The Design Professional shall send an additional copy of any notice of termination to: Associate Vice Chancellor Facilities and Construction Lone Star College- University Park SH 249 Houston, TX Non-Assignment 1.53 The Design Professional s services are personal in character, and the Design Professional may not assign any of its rights or obligations under this Agreement without LSC prior written consent. Copyrights and Patents 1.54 The Design Professional shall indemnify and hold harmless LSC and its officers, agents, and employees from liability of any nature or kind, including cost and expense, for or on account of infringement or use of any patented or otherwise protected invention, process or article in the performance of this Agreement, including its use by LSC. Page 15 of 23

16 Dispute Resolution 1.55 (1) The dispute resolution process provided for in Chapter 2260 of the Government Code shall be used, as further described herein, by LSC and to attempt to resolve any claim for breach of contract made by the Design Professional: (A) (B) (C) A Design Professional claims for breach of this contract that the parties cannot resolve in the ordinary course of business shall be submitted to the negotiation process provided in Chapter 2260, subchapter B, of the Government Code. To initiate the process, the Design Professional shall submit written notice, as required by subchapter B, to the Chancellor; or his/her designee. Said notice shall specifically state that the provisions of Chapter 2260, subchapter B, are being invoked. A copy of the notice shall also be given to all other representatives of LSC and Design Professional otherwise entitled to notice under the parties contract. Compliance by Design Professional with subchapter B is a condition precedent to the filing of a contested case proceeding under Chapter 2260, subchapter C, of the Government Code. The contested case process provided in Chapter 2260, subchapter C, of the Government Code is the Design Professional s sole and exclusive process for seeking a remedy for any and all alleged breaches of contract by LSC if the parties are unable to resolve their disputes under subparagraph (A) of this paragraph. Compliance with the contested case process provided in subchapter C is a condition precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil Practices and Remedies Code. Neither the execution of this contract by LSC nor any other conduct of any representative of LSC relating to the contract shall be considered a waiver of sovereign immunity to suit. (2) The submission, processing and resolution of Design Professional claim is governed by the published rules adopted by the Attorney General of the State of Texas pursuant to Chapter 2260, as currently effective, hereafter enacted or subsequently amended. These rules are found at 1 T.A.C. Part 3 Chapter 68. (3) Neither the occurrence of an event nor the pendency of a claim constitute grounds for the suspension of performance by Design Professional, in whole or in part. Miscellaneous 1.56 The terms and provisions of "Standard of Performance," "Ownership of Documents," "Confidentiality," "Indemnity and Hold Harmless," "Insurance," "Audits and Records," Non-Assignment, Copyrights and Patents and Dispute Resolution shall survive termination of this Agreement All attachments are incorporated by reference herein Nothing in this Agreement shall create a contractual relationship between a third party and Page 16 of 23

17 either LSC or the Design Professional This Agreement shall be governed by and construed in accordance with the laws of the State of Texas with venue and jurisdiction residing in Montgomery County, Texas LSC s failure to insist upon strict compliance with any provision hereof shall not be deemed a waiver of such provision or any other provision hereof The invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision This Agreement and all Exhibits represent the entire and integrated agreement between the Parties and supersede all prior negotiations, representations and agreements concerning the work, either written or oral. It may be modified only by written amendment signed by both Parties This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original. This Agreement shall not be effective until it is signed by the LSC Chancellor or his designee The Design Professional is an independent contractor and shall maintain complete control of the Design Professional's personnel, subcontractors and operations. As such, the Design Professional shall pay all salaries, wages, expenses, social security taxes, federal and state unemployment taxes and any similar taxes, including franchise taxes, relating to the performance of this Agreement. The Design Professional, its employees, agents and subcontractors shall in no way represent themselves or act as LSC s employees or agents, enter into any agreements or incur any obligations on LSC s behalf, or shall it commit LSC in any manner The work shall be performed by the Design Professional in such a manner and at such a time so as to minimize interference with or interruption of the operations of LSC Sex Offender Registration: The Design Professional agrees to provide the following notice to all of its employees and subcontractors who may work on any campus of LSC: All sex offenders required to register with local law enforcement authorities under chapter 62 of the Texas code of criminal procedure and who intend to work or carry on a vocation (full-time or part-time) on any campus of LSC for a consecutive period exceeding fourteen (14) days or for an aggregate period exceeding thirty (30) days in a calendar year are required to register (or verify registration) with the law enforcement authority for campus security in accordance with Article of the Texas code of criminal procedure within seven (7) days of beginning work on any campus of LSC. In addition, such sex offenders are required to notify the law enforcement authority for campus security within seven (7) days of terminating work on any campus of LSC. For additional information, please contact the LSC Police Department The Design Professional affirms that, to the best of its knowledge, no actual or potential conflict exists between the Design Professional's family, business or financial interests and its services under this Agreement, and that it shall raise with LSC any questions regarding possible conflict of interest that may arise. The Design Professional further affirms that it shall not hire any officer or employee of LSC to perform any service covered by this Agreement. If the work is to be performed in connection with a federal contract or grant, the Design Professional shall not hire any employee of the United States Government to perform any service set forth herein. Page 17 of 23