4-EXHIBIT K.2 -B102-2017 Design Prof Base.pdf

AIA B102 – 2017 OWNER/DESIGN PROFESSIONAL AGREEMENT –

WORD VERSION

AGREEMENT made as of the day of in the year (In words, indicate day, month and year)

BETWEEN the Design Professional’s client identified as the Owner:

(Name, address and other information)

Tarrant County College District (“TCCD” or “Owner”) 300 Trinity Campus Circle Fort Worth, Texas 76102 and the Design Professional:

(Name, address and other information)

[INSERT THE NAME OF THE DESIGN PROFESSIONAL]

for the following Project:

(Name, location and detailed description)

BASE AGREEMENT for Indefinite Delivery / Indefinite Quantity (IDIQ), District-Wide Professional (Architectural or Engineering) Design Services»

Owner and Design Professional agree as follows.

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 1 of 17

B102 - 2017 / BASE IDIQ – DESIGN PROFESSIONAL FORM / RCB Rev. 09/30/21 B102-2017.TCCD.Base.IDIQ.Des.Prof.WORD.RCB.093021. 4821-7289-7021 1

TABLE OF ARTICLES

1 INITIAL INFORMATION

2 DESIGN PROFESSIONAL’S RESPONSIBILITIES

3 SCOPE OF DESIGN PROFESSIONAL’S BASIC SERVICES

4 ADDITIONAL SERVICES

5 OWNER’S RESPONSIBILITIES

6 COST OF THE WORK

7 COPYRIGHTS AND LICENSES

8 CLAIMS AND DISPUTES

9 TERMINATION OR SUSPENSION

10 MISCELLANEOUS PROVISIONS

11 COMPENSATION

12 SPECIAL TERMS AND CONDITIONS

13 SCOPE OF THE AGREEMENT

EXHIBIT A INITIAL INFORMATION

ARTICLE 1 DESIGN PROFESSIONAL’S RESPONSIBILITIES

§ 1.1 The Design Professional shall provide the following professional services:

Those services as set out in the Service Authorization for each respective Project issued pursuant to the Owner’s IDIQ program and duly executed by the parties hereto.

The parties acknowledge and agree that Owner may (in its sole discretion) issue one or more Service Authorizations to Design Professional pursuant to and consistent with the Owner’s IDIQ program, incorporating the terms of this Agreement by reference. The Owner’s current form of Service Authorization is attached hereto as Exhibit A and incorporated herein.

Each individual Project shall be governed by this Agreement upon execution by both parties of a Service Authorization pursuant to the Owner’s IDIQ program. Each executed Service Authorization shall constitute an individual agreement for an individual Project which incorporates this Agreement as part of its terms. In the event of a conflict between the terms of this Agreement and the Service Authorization for a specific Project, the terms of the Service Authorization for the respective Project will control.

Design Professional expressly acknowledges and agrees that Owner is under no obligation to issue one or more Service Authorizations hereunder to Design Professional and has made no promises or representations to Design Professional with regard to its commitment to issue one or more Service Authorizations to Design Professional under this Agreement or the IDIQ program.

§ 1.1.1 The Design Professional represents that it is properly licensed in the jurisdiction where the Project is located to provide the services required by this Agreement, or shall cause such services to be performed by appropriately licensed design professionals.

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 2 of 17

§ 1.2 Design Professional agrees that it shall perform such services required hereunder in accordance with the terms of this Agreement and, in connection therewith, shall render its professional opinions and advice and exercise its professional judgment commensurate with the applicable standard of care and practice for design professional performing similar services on projects of like size, scope and complexity located in the metropolitan area and county where the Project is located (the "Standard of Care").

Notwithstanding the foregoing, to the extent that the Design Professional is a licensed architect or registered engineer providing services for which an architectural license or engineering registration is required under Applicable Law, the Standard of Care for the performance of such services shall be the professional skill and care ordinarily provided by competent engineers or architects practicing under the same or similar circumstances and professional license – to the fullest extent as may be required under Section 271.904 of the Texas Local Government Code and Chapter 130 of the Texas Civil Practice and Remedies Code.

§ 1.2.1 Without limiting the foregoing, the Design Professional shall, in accordance with the Standard of Care, design the Project and develop documents in compliance with all applicable codes, ordinances, regulations, laws, and statutes (referred to herein as “Applicable Law”) and shall make such revisions and modifications to such documents as may be necessary to comply with the permitting and other regulatory and legal requirements of the jurisdiction of the Project. All documents shall bear all indicators of completeness of the work (such as professional seals) required by the respective licensing board or Applicable Law relating to the professional services to be performed under the respective Service Authorization. The Design Professional is required to design to the most stringent prevailing code having jurisdiction over the Project.

§ 1.2.2 The Design Professional shall provide prompt written notice to the Owner if the Design Professional becomes aware of any errors, omissions or inconsistencies in any services or information furnished by or through the Owner.

§ 1.2.3 Without limiting Section 1.2.2, if the Design Professional discovers or becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Design Professional’s Instruments of Service, the Design Professional shall notify the Owner within 10 days of the time it becomes so aware or makes such discovery.

§ 1.3 Design Professional acknowledges that the timely performance of its services and obligations arising under this Agreement is of critical importance to the Owner. The Design Professional shall perform its services as expeditiously as is consistent with the Standard of Care and the orderly progress of the Project and consistent with the time parameters, if any, as set forth in the respective Service Authorization. Notwithstanding the foregoing, to the extent the Design Professional is performing “engineering or architectural services,” such services shall be performed as expeditiously as is prudent considering the ordinary professional skill and care of a competent engineer or architect.

§ 1.3.1 Except as otherwise provided in the respective Service Authorization, the Design Professional shall submit for the Owner's approval a schedule for the performance of the Design Professional's services which shall be consistent with the time periods established in the designated Service Authorization and which may be adjusted, if necessary, by written mutual agreement of the parties as the Project proceeds. This schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Design Professional or the Owner.

§ 1.4 The Design Professional shall identify, in writing, a representative authorized to act on behalf of the Design Professional with respect to this Agreement and each Project for which services are authorized to be performed pursuant to the Service Authorizations. Such representative shall not be changed except upon written notice furnished to Owner.

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 3 of 17

§ 1.5 Except with the Owner’s knowledge and consent, the Design Professional shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Design Professional’s professional judgment with respect to this Project.

§ 1.6 The Design Professional shall maintain the insurance coverages for the duration of this Agreement and each Service Authorization as required in the Insurance Requirements attached hereto as Exhibit B and incorporated fully herein.

§ 1.7 The Design Professional shall transmit all project related communication and documentation between the Owner and the Design Professional through the Owner or Owner’s designated Program Manager. The Design Professional shall coordinate all project communication and documentation using program management software as designated by the Owner.

§ 1.8 The Design Professional is responsible to coordinate its work with all applicable existing buildings, infrastructure and other conditions, as well as all existing utilities and services. Any required notifications for the Design Professional’s work are the responsibility of the Design Professional to be communicated to the Owner, and any other applicable agencies or utility companies or governing authorities.

§ 1.9 Design Professional acknowledges that it is acting as an independent contractor, that it is solely responsible for its actions or inactions and that no document, action or assertion shall be construed to create an employment or agency relationship between Owner and Design Professional. Design Professional is not authorized to enter into contracts or agreements on behalf of Owner or to otherwise create obligations of Owner to third parties.

§ 1.10 The Design Professional shall hire all sub-consultants ("sub-consultants") necessary to properly complete the services and perform its obligations under the Agreement.

§ 1.10.1 The services to be rendered by the Design Professional consist of, and all references in this Agreement to the Design Professional’s services shall be deemed to include, services rendered by the entity defined as the Design Professional and services rendered by employees of such entity and all sub-consultants, specialists, and other persons, firms, or entities retained by the Design Professional to perform services pursuant to this Agreement. Any term or provision to the contrary notwithstanding, Design Professional shall be responsible for the timely and proper performance of all such services, subject to the licensing requirements of the state where the Project is located and in accordance with the Standard of Care.

§ 1.10.2 All sub-consultants retained by the Design Professional not previously approved by the Owner are subject to the Owner's approval on the basis of qualifications and personnel committed to the Project which approval shall not be unreasonably withheld. In addition, all substitutions of sub-consultants by the Design Professional are subject to the Owner's approval, which approval shall not be unreasonably withheld.

§ 1.11 As between the Owner and the Design Professional, the Design Professional is solely responsible for the work, direction and compensation of its sub-consultants, employees or any other party Design Professional shall retain or employ; and neither Owner, Owner's designated representative(s), nor Owner's consultants will incur any liability by virtue of any act, omission, negligence or obligation of Design Professional, Design Professional’s employees or sub-consultants, or any other person for whom Design Professional shall be legally responsible.

ARTICLE 2 OWNER’S RESPONSIBILITIES

§ 2.1 Unless otherwise provided for under this Agreement or the respective Service Authorization, and upon the Design Professional’s timely request, the Owner shall provide information in a timely manner regarding requirements for and limitations on the respective Project, including a written program which shall set forth the Owner’s objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems and site requirements.

§ 2.2 The Owner shall identify a representative authorized to act on the Owner’s behalf with respect to this Agreement and each Project for which services are authorized to be performed pursuant to the Service Authorizations. The Owner shall render decisions and approve the Design Professional’s submittals in a timely

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 4 of 17 manner in order to avoid unreasonable delay in the orderly and sequential progress of the Design Professional’s services.

§ 2.3 The Owner shall coordinate the services of its own consultants with those services provided by the Design Professional. Upon the Design Professional’s request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner’s consultants. The Owner shall furnish the services of consultants other than those designated as the responsibility of the Design Professional in this Agreement or the respective Service Authorization, or authorize the Design Professional to furnish them as an Additional Service, when the Design Professional requests such services and demonstrates that they are reasonably required by the scope of the Project.

The Owner shall require that its consultants and contractors maintain insurance, including professional liability insurance, as appropriate to the services or work provided.

§ 2.4 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner’s needs and interests.

§ 2.5 The Owner shall provide prompt written notice to the Design Professional if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Design Professional’s Instruments of Service. This, however, shall not impose an independent duty on the Owner to review the accuracy or completeness of the Design Professional's Instruments of Service.

ARTICLE 3 COPYRIGHTS AND LICENSES

§ 3.1 Drawings, specifications and other documents, including those in electronic form, prepared by the Design Professional and the Design Professional's sub-consultants issued under this Agreement and each respective Service Authorization are Instruments of Service (referred to herein as "Instruments of Service") and all rights therein shall be governed by and subject to the terms set forth in Exhibit C (Instruments of Service: Conveyance of Rights to Owner) attached hereto and incorporated fully herein.

§ 3.1.1 The Design Professional and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party, or the party to whom the transmission is directed, is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the respective Project. If the Owner and Design Professional intend to transmit Instruments of Service or any other information or documentation in digital form, they shall endeavor to establish necessary protocols governing such transmissions.

§ 3.2 [Intentionally deleted. See Exhibit C attached hereto and incorporated fully herein.]

§ 3.3 [Intentionally deleted. See Exhibit C attached hereto and incorporated fully herein.]

§ 3.3.1 [Intentionally deleted. See Exhibit C attached hereto and incorporated fully herein.]

§ 3.4 [Intentionally deleted. See Exhibit C attached hereto and incorporated fully herein.]

§ 3.5 Except as otherwise stated in Exhibit C, the provisions of this Article 3 shall survive the termination of this Agreement.

ARTICLE 4 CLAIMS AND DISPUTES

§ 4.1 GENERAL

§ 4.1.1 The Owner and Design Professional shall commence all claims and causes of action, whether in contract, tort, or otherwise, against the other arising out of or related to this Agreement or a Service Authorization issued hereunder in accordance with the requirements of the method of binding dispute resolution selected in this Agreement within the period specified by Applicable Law.

§ 4.1.2 To the extent damages are covered by and recoverable from property insurance during construction, the Owner and Design Professional waive all rights against each other and against the contractors, consultants and sub-consultants, agents and employees of the other for damages, but only to the extent of the actual recovery of the

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 5 of 17 proceeds of such insurance. The Owner or the Design Professional, as appropriate, shall require of the contractors, consultants and sub-consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein.

§ 4.1.3 To the fullest extent permitted by Applicable Law, causes of action by the Owner against the Architect pertaining to acts or failures to act in connection with the professional services rendered or to be rendered under a Service Authorization shall be deemed to have accrued and the applicable statute of limitations shall commence to run either on the date of Substantial Completion of the construction of the improvements that were the subject of the respective Service Authorization or upon the Owner's discovery of damages to the Owner or the respective Project resulting from the act or failure to act by the Architect, whichever is later.

§ 4.2 MEDIATION

§ 4.2.1 Any claim, dispute or other matter in question arising out of or related to this Agreement or a Service Authorization issued hereunder shall be subject to mediation as provided herein.

§ 4.2.2 The Owner and Design Professional shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to the Agreement, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

§ 4.2.3 The parties shall share the mediator’s fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

§ 4.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 4.2, the method of binding dispute resolution shall be the following:

(Check the appropriate box. If the Owner and Design Professional do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, the dispute will be resolved in a court of competent jurisdiction.)

[ «X » ] Litigation in a state or federal district court located in Fort Worth, Tarrant County, Texas.

§ 4.3 [Intentionally omitted.]

§ 4.4.4 CONSOLIDATION OR JOINDER

§ 4.4.4.1 Any consolidation or joinder of litigation arising out of this Agreement or a Service Authorization issued hereunder shall be subject to the applicable rules of procedure in the respective court with regard to consolidation and joinder.

§ 4.5 The provisions of this Article 4 shall survive the termination of this Agreement.

ARTICLE 5 TERMINATION OR SUSPENSION

§ 5.1 If the Owner fails to make payments not in good faith dispute to the Design Professional with regard to a Service Authorization in accordance with this Agreement and the respective Service Authorization, such failure shall be considered substantial nonperformance and cause for suspension of performance of services under the respective Service Authorization. If the Design Professional elects to suspend services under the respective Service Authorization, the Design Professional shall give fourteen days’ written notice to the Owner after Owner’s material default before suspending services, provided that Owner has not substantially cured such default. In the event Owner

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 6 of 17 does not cure such non-payment within the time permitted and the Design Professional properly suspends services by written notice to Owner, the Design Professional shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services under the respective Service Authorization. Upon Owner’s cure of such default, Design Professional shall promptly resume the performance of its services; provided, however, before resuming services, the Design Professional shall be paid all sums due under the respective Service Authorization prior to suspension and any reasonable and directly related actual expenses incurred in the interruption and resumption of the Design Professional’s services. The Design Professional’s fees for the remaining services and the time schedules under the respective Service Authorization shall be equitably adjusted consistent with the provisions for the compensation of the Design Professional under this Agreement and the respective Service Authorization.

§ 5.2 If the Project with regard to a Service Authorization has been suspended for more than 30 consecutive days for reasons other than the fault of the Design Professional, the Design Professional may suspend its services with regard to the respective Service Authorization upon written notice to Owner, effective upon fourteen days after Owner’s receipt thereof. In the event the Project is not resumed prior to the effective date of the suspension and Design Professional properly suspends services by written notice to the Owner, the Design Professional shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services with regard to the respective Service Authorization. When the Project is resumed, the Design Professional shall promptly resume the performance of its services with regard to the respective Service Authorization; provided, however, before resuming services, the Design Professional shall be paid any actual, direct expenses reasonably incurred in the interruption and resumption of the Design Professional’s services, to the extent such expenses cannot, by exercising reasonable commercial efforts, be mitigated by Design Professional. The Design Professional’s fees for the remaining services and the time schedules under the respective Service Authorization shall be equitably adjusted consistent with the provisions for the compensation of the Design Professional under this Agreement and the respective Service Authorization.

§ 5.3 If the Project with regard to a Service Authorization has been suspended for more than 90 cumulative days for reasons other than the fault of the Design Professional, the Design Professional may terminate the respective Service Authorization only (and not any Service Authorizations for which no independent grounds for termination exist) by giving not less than fourteen days’ written notice thereafter to Owner, unless the Project with regard to the Service Authorization is resumed prior to the effective date of such termination.

§ 5.4 A Service Authorization may be terminated by either party for cause upon not less than fourteen days’ written notice to the other party which fully sets out the grounds for termination and, subject to such other party’s right to cure within such time period following receipt of such written notice, should such other party fail to substantially perform in accordance with the terms of this Agreement and the respective Service Authorization through no fault of the terminating party. Design Professional’s right of termination under this Section 5.4 is in addition to and independent of its right of suspension under Section 5.1 and 5.2 and its right of termination under Section 5.3.

Owner’s right of termination under this Section 5.4 is in addition to and independent of its right of suspension or termination under Section 5.5.

§ 5.5 The Owner may also temporarily suspend the Design Professional’s performance under a Service Authorization at any time and from time-to-time, or upon mutual agreement redirecting the Services. The Design Professional shall stop all services on the date of notification. The Owner may terminate any Service Authorization upon not less than seven days’ written notice to the Design Professional for the Owner’s convenience and without cause.

§ 5.6 In the event of termination of a pending Service Authorization for any reason (other than the fault of the Design Professional), the Design Professional’s sole recovery from the Owner shall be compensation as authorized by this Agreement and the respective Service Authorization for services performed prior to termination, together with Reimbursable Expenses then due, including actual, direct expenses reasonably and necessarily incurred by the Design Professional in connection with the termination of the terminated Service Authorization, to the extent such expenses cannot, by exercising reasonable commercial efforts, be mitigated by Design Professional.

§ 5.7 [Intentionally deleted.]

Tarrant County College District Page 7 of 17

§ 5.8 The Owner’s rights to use the Design Professional’s Instruments of Service in the event of a termination of this Agreement or a Service Authorization are set forth in Article 3 and Exhibit C (Instruments of Service:

Conveyance of Rights to Owner) attached hereto and incorporated fully herein.

§ 5.9 Grounds for termination or suspension of performance of any respective Service Authorization by the Design Professional shall not constitute grounds for the termination or suspension of performance of any other Service Authorization unless Design Professional is entitled to termination or suspension of such other Service Authorization due to the Owner’s suspension of such Service Authorization or material breach of such Service Authorization, notice by Design Professional as required herein, and Owner’s failure to cure such cause for termination or suspension within the applicable cure period.

§ 5.10 Either party may terminate this Agreement without cause and for convenience as to future Service Authorizations which have not been entered into by the parties upon thirty (30) days written notice to the other party. Termination of this Agreement without termination of a Service Authorization entered into hereunder shall not constitute a termination of the respective Service Authorization, and the terms and conditions of this Agreement shall survive with regard to the respective Service Authorization.

ARTICLE 6 COMPENSATION

§ 6.1 The Owner shall compensate the Design Professional for services performed in connection with a Service Authorization issued pursuant to the Owner’s IDIQ program. Such compensation shall be computed as indicated in the respective Service Authorization.

§ 6.1.1 If the services of the Design Professional are changed as described in the respective Service Authorization the Design Professional's compensation shall be adjusted. Such adjustment shall be calculated as described below or, if no method of adjustment is indicated in the respective Service Authorization in an equitable manner consistent with the terms of this Agreement.

§ 6.1.2 For a Change in Services of the Design Professional's sub-consultants, compensation shall be computed as a multiple of one (1.0) times the amounts billed to the Design Professional for such services.

§ 6.1.3 For Reimbursable Expenses as described in Section 6.2 or as otherwise provided in the respective Service Authorization, the compensation shall be computed as a multiple of one (1.0 ) times the expenses incurred by the Design Professional, and the Design Professional's employees and sub-consultants.

§ 6.1.4 The rates and multiples for services of the Design Professional and the Design Professional's sub-consultants as set forth in this Agreement shall not be adjusted except by written agreement of Owner and Design Professional or as otherwise expressly provided by the respective Service Authorization.

§ 6.1.5 If the services covered by a Service Authorization issued pursuant to the Owner’s IDIQ program have not been completed within the schedule or other time requirements set forth in the respective Service Authorization, through no fault of the Design Professional, extension of the Design Professional's services beyond that time shall be compensated with mutual consent.

§ 6.2 Except as otherwise provided in the respective Service Authorization, Reimbursable Expenses are in addition to compensation for the Design Professional’s professional services and shall be actual expenses reasonably incurred by the Design Professional and the Design Professional’s sub-consultants directly related to the Project as follows:

.1 transportation for out-of-town travel and subsistence authorized by Owner (reimbursement for travel by automobile shall be reimbursable at the IRS standard mileage rate in effect at the time of travel;

reimbursement for travel by commercial air shall not exceed, unless otherwise authorized by Owner, tourist class rates);

.2 the actual cost of office supplies, parking, document reproduction, check plots, mylar ink plots, CAD plots, mock-ups (if authorized by Owner), typography, technical specifications, offset printing, laser plots, photography, photographic supplies and prints, renderings, models (if authorized by Owner), postage, delivery, computer equipment time, and other similar project related expenses;

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 8 of 17

.3 permitting and other required fees paid for securing approval of authorities having jurisdiction over the Project; and

.4 other similar Project-related expenditures reasonably required for the performance of the services required by the respective Service Authorization pre-approved by Owner in writing.

§ 6.2.1 Design Professional shall not be entitled to a mark-up as an administrative fee on Reimbursable Expenses except as provided in Section 6.1.4 above or as otherwise expressly provided in the Service Authorization.

§ 6.3 COMPENSATION FOR USE OF DESIGN PROFESSIONAL’S INSTRUMENTS OF SERVICE

[Intentionally deleted. See Exhibit C attached hereto and incorporated fully herein.]

§ 6.4 PAYMENTS TO THE DESIGN PROFESSIONAL

§ 6.4.1 No initial payment shall be made upon execution of this Agreement or any Service Authorization issued pursuant to the Owner’s IDIQ program.

§ 6.4.2 Unless otherwise agreed in the respective Service Authorization, Design Professional shall submit its invoice no later than the end of the month for services performed during the preceding calendar month. Payments are due and payable thirty (30) days from the presentation of the Design Professional’s invoice to Owner which conforms to the requirements of this Agreement and the respective Service Authorization. Interest on past due amounts shall be governed by Chapter 2251, Texas Government Code.

§ 6.4.3 [Intentionally deleted.]

§ 6.4.4 For Service Authorizations that provide for the compensation of the Design Professional to be a stipulated amount, the Design Professional’s services shall be broken down in the respective Service Authorization into phases or components with the stipulated amount being allocated in the Service Authorization to each such phase or component. Payment shall be based upon the percentage of completion for each such phase or component of the services performed by or through the Design Professional in conformity with the requirements of this Agreement and the respective Service Authorization during the period covered by the invoice.

§ 6.4.5 For Service Authorizations that provide for the compensation of the Design Professional to be based upon hourly charges for time spent in the performance of the services, the Design Professional’s compensation rates shall be based upon the Personnel Rates Schedule attached as Exhibit D to this Agreement, except as it may be modified by the respective Service Authorization. Hourly rates for services performed by Design Professional’s sub-consultants will be as set out in the Service Authorization.

§ 6.4.5.1 Hourly rates set out in the Personnel Rates Schedule include all benefits payable to such persons identified (by name or position) therein, including all mark-ups for administrative overhead, and shall represent the Design Professional’s full compensation for the services performed by the persons identified therein. Design Professional shall not be entitled to any additional mark-up on such rates.

§ 6.4.6 Except as otherwise provided by the respective Service Authorization, for Additional Services (for services authorized by the Owner beyond the scope of the services required to be performed pursuant to the respective Service Authorization), Design Professional shall be compensated for such services on the basis of the Personnel Rates Schedule attached hereto and subject to the terms and conditions with regard to determining such rates as provided in Section 6.4.5.1 above.

§ 6.4.7 Records of time spent performing services by personnel of Design Professional and its sub-consultants (when the respective Service Authorization provides for compensation to be based upon hourly rates) and back-up documentation for Reimbursable Expenses shall be available to the Owner or the Owner’s authorized representative at mutually convenient times.

Tarrant County College District Page 9 of 17

§ 6.4.8 Upon receipt of each invoice from the Design Professional, the Owner shall:

.1 approve the invoice as submitted; or .2 make minor modifications or corrections and process the invoice as modified/corrected; or .3 return the invoice to the Design Professional to be revised and resubmitted.

§ 6.4.9 Payments shall be made following presentation of the Design Professional’s approved statement of services completed when determined to be contractually due in accordance with this Agreement and the respective Service Authorization.

§ 6.4.10 The Design Professional shall provide payment to each of its sub-consultants and suppliers within ten (10) calendar days after receiving payment from the Owner for amounts previously invoiced for services performed or materials furnished for the respective Service Authorization. All sub-consulting agreements shall contain payment provisions requiring payments to lower-tier sub-consultants within ten (10) calendar days after the first-tier sub-consultant receives payment from the Design Professional. Interest on late payments is subject to the provisions of the Chapter 2251 of the Texas Government Code regarding payments to subcontractors.

§ 6.4.11 The Owner shall make final payment for services upon receipt of the final invoice and a release of all claims against the Owner arising by virtue of the Project and/or the terms of this Agreement and the respective Service Authorization, by both the Design Professional and all sub-consultants other than those claims, in stated amounts, that the Design Professional and/or sub-consultants have specifically excepted from the operation of the release. A release may also be required of the assignee if the Design Professional’s claim to amounts payable under the respective Service Authorization has been assigned. The Design Professional shall furnish its release in the form attached hereto as Exhibit E, or such other form of release acceptable to the Owner. For purposes of this section, “sub-consultant” means all first-tier sub-consultants and material suppliers.

ARTICLE 7 MISCELLANEOUS PROVISIONS

§ 7.1 This Agreement and each Service Authorization issued under the Owner’s IDIQ program shall be governed by the law of the place where the Project is located and the terms of this Agreement and each Service Authorization issued hereunder shall be interpreted to comply with the laws of such jurisdiction. This Agreement and each Service Authorization issued hereunder is fully performable in Tarrant County, Texas, and venue for all suits arising from this Agreement or the Project shall be Tarrant County, Texas.

§ 7.2 Except as otherwise expressly provided in the Agreement and the respective Service Authorization, terms in this Agreement shall have the same meaning as those in the Owner’s Standard Form of AIA Document A201–2007, General Conditions of the Contract for Construction for Competitive Sealed Proposals at the time this Agreement is entered into (a copy of which will be provided to the Design Professional upon written request to the Owner).

§ 7.3 The Owner and Design Professional, respectively, bind themselves, their agents, successors, assigns and legal representatives to this Agreement and each Service Authorization issued hereunder. The Design Professional shall not assign this Agreement or any Service Authorization, nor any monies due or to become due to it hereunder without the prior written consent of the Owner.

§ 7.4 If the Owner requests the Design Professional to execute certificates, the proposed language of such certificates shall be submitted to the Design Professional for review at least 10 days prior to the requested dates of execution. If the Owner requests the Design Professional to execute consents reasonably required to facilitate assignment to a lender, the Design Professional shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Design Professional for review at least 10 days prior to execution. The Design Professional shall not be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of this Agreement or the respective Service Authorization. However, the Owner may require and the Design Professional shall execute, as part of its Basic Services under any Service Authorization, any certificates or certifications customarily, commonly, or reasonably required on projects of this type.

§ 7.5 Nothing contained in this Agreement or a Service Authorization shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Design Professional.

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 10 of 17

§ 7.6 Unless otherwise required in this Agreement or the respective Service Authorization, the Design Professional shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site -- except to the extent that such hazardous substances were introduced to the Project site by Design Professional or as a part of or derived or resulting from materials or other items specified by the Design Professional's Plans, Drawings, Specifications, or other documents (in which case the Design Professional shall have such responsibility to the extent that Design Professional breached its Standard of Care).

§ 7.7 The Design Professional shall have the right to include photographic or artistic representations of the design of the Project among the Design Professional’s promotional and professional materials. The Design Professional shall be given reasonable access to the completed Project to make such representations. However, the Design Professional’s materials shall not include the Owner’s confidential or proprietary information if the Owner has previously advised the Design Professional in writing of the specific information considered by the Owner to be confidential or proprietary.

§ 7.8 The Design Professional shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such information would violate the law, create the risk of significant harm to the public or prevent the Design Professional from establishing a claim or defense in an adjudicatory proceeding. The Design Professional shall require of the Design Professional's sub-consultants similar agreements to maintain the confidentiality of information specifically designated as confidential by the Owner.

§ 7.9 If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement or a Service Authorization or to recover damages for breach of contract or negligence arising out of or in connection with the performance of the services thereunder, the Court shall determine the prevailing party and award to such prevailing party, in addition to any other relief to which such party is entitled to recover, its reasonable attorneys' fees, expert witness fees, costs, and other reasonable expenses incurred in such proceeding.

§ 7.10 To the fullest extent permitted by law (and no further), the Design Professional hereby indemnifies and holds harmless Owner and its employees, elected officials, officers, boards, commissions, volunteers, instructors, agents and representatives (hereinafter referred to individually as an “Indemnified Party” and collectively as the “Indemnified Parties”) from and against all damages to the extent caused by or resulting from, in whole or in part, an act of negligence, intentional tort, intellectual property infringement, or failure to pay a subcontractor or supplier committed by the Design Professional or the Design Professional’s agents, the Design Professional’s sub-consultants under contract, or another entity over which the Design Professional exercises control (even if such damage is caused in part by the concurrent or partial negligence of an Indemnified Party). However, the indemnity provided for in this paragraph does not apply to the extent of any liability caused by the negligence or fault, the breach or violation of Applicable Law, or the breach of contract of the Indemnitees or their agents or employees, or any third party under their control or supervision other than the Design Professional or its agents, employees, subcontractors or sub-consultants of any tier.

§ 7.10.1 Design Professional’s obligation to indemnify the Indemnified Parties shall extend to the reimbursement of those reasonable attorney’s fees and litigation or arbitration costs and expenses incurred by the Indemnified Parties in the defense of claims asserted against the Indemnified Parties which arise from the alleged acts or omissions described in Section 7.10 above. However, except to the extent covered by insurance for which the Owner is an Additional Insured in accordance with Applicable Law and Section 7.10.2 below, the indemnity and hold harmless obligation of the Design Professional with regard to the reasonable attorney’s fees and litigation or arbitration costs and expenses incurred by such Indemnified Party in defense of such claim shall be apportioned comparatively (i.e., limited to the amount based on the percentage of negligence or fault of the Design Professional and/or its sub-consultants of any tier) in accordance with the Laws of the State of Texas, without waiving any governmental immunity available to the State and its Agencies and Subdivisions under Texas law and without waiving any defense of the Parties under Texas law.

§ 7.10.2 Notwithstanding any limitations on the indemnity obligations under this Section 7.10 but to the fullest extent permitted by Section 271.904 of the Texas Local Government Code and Chapter 130 of the Texas Civil

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 11 of 17

Practice and Remedies Code or such other Applicable Law, Owner shall be named as an additional insured on the Design Professional’s general liability policy required in Exhibit C, and Design Professional shall defend or cause to be defended Owner and such other Indemnified Parties against those claims covered by such insurance to the extent such defense is provided by such insurance.

§ 7.10.3 The indemnification obligations assumed under this Section 7.10 shall not be limited by a limitation on the amount or type of damages which might otherwise be recoverable by Owner against the Design Professional.

§ 7.10.4 The Design Professional’s indemnity and defense obligations provisions set forth in this Section 7.10 shall survive the expiration or earlier termination of this Agreement and each respective Service Authorization issued hereunder and any other services to be provided pursuant to this Agreement or the respective Service Authorization.

§ 7.11 This Agreement or any Service Authorization issued hereunder shall not be amended except by written agreement of the parties, duly executed by an authorized representative of each party.

§ 7.12 All notices shall be in writing and shall be delivered personally, by Federal Express, or by registered or certified mail return receipt requested. Notices to the respective parties shall be delivered as follows:

To Owner:_______________ with copies sent contemporaneously to:

Carol Bracken, Associate General Counsel Tarrant County College District

TRWF 1402A

300 Trinity Campus Circle Fort Worth, Texas 76102

To Design Professional: ____________

Notice shall be effective on the date of delivery, or if delivery is refused, on the date of attempted delivery. Either party may change its address for notice by notifying the other party in accordance with this Section.

§ 7.13 No term or condition of this Agreement or a Service Authorization may be waived at any time by the party or parties entitled to the benefit thereof except in a writing signed by such party and specifically addressing such waiver. No waiver of any default or breach hereunder shall be construed as a waiver of any subsequent breach.

Except as otherwise expressly provided in this Agreement or a respective Service Authorization, no failure or delay on the part of a party in exercising any right, power or privilege under the Agreement or a respective Service Authorization, nor any course of dealing between the parties, will waive, amend or vary the terms of the Agreement or the respective Service Authorization.

§ 7.14 In the event any provision of this Agreement or the respective Service Authorization shall be held invalid or unenforceable, the remainder of this Agreement or the respective Service Authorization and the application of such provisions to persons or situations hereunder shall not be affected and shall continue to be valid and enforceable to the fullest extent permitted by Applicable Law and such invalid or unenforceable provision shall be construed, to the fullest extent permitted by Applicable Law, to give effect to the parties’ intentions and purposes in executing the Agreement and the respective Service Authorization.

ARTICLE 8 SPECIAL TERMS AND CONDITIONS

Special terms and conditions that modify this Agreement are as follows:

§ 8.1 CONFLICT OF INTEREST. No employee of the Owner and no member of the Owner’s Board of Trustees shall have any conflict of interest or potential conflict of interest with the Design Professional or its agents, including a financial interest, in this Agreement or any Service Authorization issued hereunder, either currently, within the past two (2) years, or within one (1) year following separation from the Owner.

EXHIBIT K.2 -B102-2017 Design Prof Base

RFQ#26-007

Tarrant County College District Page 12 of 17

§ 8.1.1 The Design Professional covenants that the Design Professional has no existing interest and will not acquire any interest, direct or indirect, which could conflict in any manner or degree with the performance of services required under this Agreement or any Service Authorization issued hereunder and that no person having any such interest shall be employed by the Design Professional. Neither the Design Professional nor the Owner shall have any conflict of interest or potential conflict of interest, including a financial interest, with any employee of the Owner, any member of the Owner’s Board of Trustees, contractor, subcontractor, vendor or supplier affected by this Agreement or any Service Authorization issued hereunder, either currently or within the past two (2) years. This is not to include interest unknown due to involvements in retired accounts and/or investments that regularly acquire new stocks or bonds not under the direct control of the Design Professional or its agent.

§ 8.1.2 No member of the Texas Legislature shall share, or have any financial interest, directly or indirectly, in this Agreement any Service Authorization issued hereunder or any benefit therefrom.

§ 8.1.3 The Design Professional agrees that neither the Design Professional nor its member companies nor their affiliated companies nor company principals nor their family members shall bid on or perform any direct construction work in connection with Projects in which the Design Professional has participated in a design effort.

The Design Professional agrees that neither the Design Professional nor its member companies nor their affiliated companies nor company principals nor their family members shall have any financial interest in a firm which bids on or performs any part of the construction work in connection with Projects in which the Design Professional has participated in a design effort. The provisions of this Article are not intended to prevent the Design Professional from performing follow-up professional services for others during subsequent phases of work at a particular site, but rather the Design Professional is prohibited from activities which create conflicts of interest or apparent conflicts of interest as a result of work performed by the Design Professional under this Agreement or any Service Authorization issued hereunder.

§ 8.