4-Sample Professional Services Agreement 10.25.23.pdf

PROFESSIONAL SERVICES AGREEMENT

(Professional Architecture and Engineering Services)

1. PARTIES

1.1 Parties. The Parties to this Professional Services Agreement (“Agreement”) are Click here to enter text.

(“Architect”), and Harris County (“County”), on behalf of its Harris County Engineering Department ("HCED"). County and Architect each may also be referred to individually herein as a “Party,” or collectively as the “Parties.”

2. PURPOSE

2.1 Project Description. Click here to enter text. ("Project"). This Project is also identified as UPIN Click here to enter text..

2.2 Summary of Scope of Work. In addition to any applicable attachments to this Agreement describing the Scope of Work, Click here to enter text.

2.3 Architecture and Professional Engineering Services. The professional services to be performed under this

Agreement are within the scope of professional architecture and engineering, as defined by state law, and will be provided in connection with the professional employment or practice of a person who is licensed or registered as a professional architect and engineer, for the respective professional services. The professional engineering services shall be performed in accordance with Tex. Occ. Code Ann. §§ 1001.001,

et. seq, as amended; and the professional architecture services will be performed in accordance with Tex.

Occ. Code Ann. §§ 1051.001, et. seq, as amended.

2.4 Professional Services Procurement Act. The work to be performed under this Agreement cannot be purchased on the basis of competitive bids since it is encompassed within Texas Government Code §2254.002(2).

3. ARCHITECT’S REPRESENTATIONS

3.1 Applicable Expertise. Architect and the person executing this Agreement on behalf of Architect certify and represent that Architect (including Architect’s agents, employees, volunteers, and subcontractors, as applicable) possesses the skills, qualifications, expertise, experience, education, knowledge, ability, and financial resources to perform all services and/or deliverables contemplated in this Agreement without significant disruption of those deliverables.

3.2 Permits and Licensing. Architect represents that Architect (including Architect’s agents, employees, volunteers, and subcontractors, as applicable) possesses all special certifications, licenses, inspections and permits required by law to carry out the Scope of Work contemplated in this Agreement. Architect’s agents, employees, volunteers, and subcontractors, as applicable, shall maintain appropriate accreditation and licensing, as required, through the State of Texas or other applicable licensing entities. Prior to the performance of any services under this Agreement, Architect shall, upon written (including electronic) request, provide proof of valid licensure to HCED (including a listing of all licenses and expiration dates).

3.3 Authorized to Conduct Business. Architect represents that Architect is authorized to conduct the business and carry out the Scope of Work contemplated in this Agreement. Prior to starting performance under this Agreement, Architect shall, upon written (including electronic) request, provide proof to HCED of the authority to do business in this state or at the location specified in this Agreement.

3.4 Ability to Perform. HCED will award contracts only to the most highly qualified available responsible provider/contractor possessing the ability to perform successfully under the terms, conditions, and budget of a proposed procurement. Consideration will be given to such matters as provider integrity, compliance with public policy, record of past performance, and financial and technical resources. Architect represents that Architect has the administrative, managerial, and financial capability to ensure proper planning, management and completion of the Scope of Work described in this Agreement and further has the administrative capacity and capabilities to carry out all duties and responsibilities under this Agreement.

3.5 Conflict of Interest Certification. Pursuant to Chapter 176 of the Texas Local Government Code, Architect certifies that Architect has completed any required conflict of interest disclosures or questionnaires (see www.ethics.state.tx.us). If this certification is materially incomplete or inaccurate, Architect acknowledges that County shall have the right to terminate this Agreement without prior notice.

3.6 Certificate of Interested Parties Form 1295. Architect certifies that it has accurately completed and submitted a notarized Certificate of Interested Parties Form 1295 (“Form 1295”) in accordance with Texas Government Code §2252.908 and the rules adopted thereunder. Architect acknowledges that it is responsible for making any and all necessary updates and/or corrections to the applicable Form 1295 during the term of this Agreement. Architect must either (1) mail the completed Form 1295 to the Harris County Engineering Department at 1111 Fannin Street, 11th Floor, Houston, TX 77002, Attn: Administrative Services or (2) submit the form by email to HCEDAdminSvcs@hcpid.org.

3.7 Disbursements to Persons with Outstanding Debt Prohibited. Architect certifies, by execution of this Agreement, that neither Architect nor any of Architect's principals owe any debts as defined in Local Government Code Section 154.045 (including delinquent property taxes). Architect understands that certain disbursements are prohibited and that County may apply any funds due to Architect under this Agreement to any outstanding balance of certain debts pursuant to Section 154.045. If this certification is inaccurate, County may also terminate this Agreement. In addition, Architect hereby assigns any payments under this Agreement to the Harris County Tax Assessor-Collector for the payment of any current or future delinquent taxes.

3.8 Internet Access. Architect shall maintain appropriate internet access, which will enable Architect to access any secure online invoicing, reporting, or other web-based system designed for more efficient communication with HCED. As requested, Architect shall submit required reports, invoices and related documents through an applicable secure internet site in a manner required to protect any confidential information submitted. Architect shall review all instruction materials and/or attend all HCED provided training that is necessary for Architect to properly utilize applicable web-based information systems.

4. SPECIFIC SCOPE OF WORK/SERVICES AND/OR DELIVERABLES

4.1 Specific work, products, services, licenses and/or deliverables. Architect shall provide the work, products, services, licenses and/or deliverables required to be provided by Architect and as set out in this Agreement and in Attachment A and all other referenced attachments incorporated in this Agreement (altogether referred to as the Scope of Work). The provisions in this Agreement labeled 'Scope of Services' or 'Scope of Work' shall take precedence over anything conflicting in any attached Architect proposal or correspondence. Architect shall submit any and all project-related documents and invoices through the cloud-based project management software utilized by HCED for planning and management of all projects using real-time project data.

4.2 Written Authorization. From time to time during the course of this Agreement, HCED may deliver to

Architect written (including electronic) authorization (sometimes referred to as a notice-to-proceed, task-order, work-order or job-order) for providing certain work, products, services, licenses and/or deliverables contemplated in this Agreement, which Architect shall then perform in accordance with this Agreement.

Architect shall not begin or proceed to the next design phase of the Scope of Work until Architect receives from HCED a written (including electronic) authorization to proceed. County shall have no obligation to pay for and Architect shall have no obligation to provide any work, services, products, or deliverables not rendered in accordance with a prior written authorization as described by this Section. Architect shall complete the services called for by the calendar days and by the deadlines specified in this Agreement, including exhibits and written authorizations.

5. ADDITIONAL AND SPECIAL REQUIREMENTS

5.1 Cooperation with Other Service Providers. County may engage the services of other service providers for work related to the work, products, services, licenses and/or deliverables in this Agreement. Architect shall reasonably cooperate with such other service providers and will not commit or permit any act that may interfere with the performance of work by any other service provider.

5.2 Non-Assignability. Unless otherwise authorized in this Agreement, neither party shall assign, in whole or in part, any duty or obligation of performance under this Agreement without the express written permission of the other party, except that the express written permission of HCED shall be considered the permission of County. Such written permission will not be unreasonably withheld, unreasonably conditioned, or unreasonably delayed. However, with notice to HCED, Architect may assign this Agreement to any affiliate of Architect that controls, is controlled by, has resulted from a merger with, or is under common control with, Architect if the assignee is at least as capable and qualified to provide the deliverables contemplated in this Agreement. This provision is not intended to restrict any assignment that is required by Section 9.406 of the Texas Business and Commerce Code.

5.3 Independent Contractor/Parties. County expects Architect to meet the high standards set forth in this

Agreement and looks to Architect for results only. Unless otherwise required by law or regulation, County shall not direct the methods used to obtain those results, and Architect shall perform the services as an independent contractor under the sole supervision, management, direction, and control of Architect. As an independent contractor, Architect will accept directions pertaining to the goals to be attained and the results to be achieved, as applicable, pursuant to this Agreement, but Architect shall be solely responsible for the manner in which Architect will perform the services under this Agreement. Any methods that might be discussed in any training sessions given by HCED are not mandatory unless specifically required in writing in this Agreement or by law. Architect is not obligated to maintain any set, regular hours, nor to perform any set number of hours of service in fulfilling the obligations under this Agreement, unless otherwise specifically set out in this Agreement. This Agreement is not intended to create a joint enterprise, joint venture, business partnership, agency, franchise, or employment relationship, under Texas law. The personnel and staff of Architect are independent contractors or employees of Architect and shall not for any purposes be considered employees or agents of County. Architect assumes full responsibility for the actions of any employees and agents while performing any services incident to this Agreement, and Architect shall remain solely responsible for the supervision, daily direction, control and payment, if any, of salaries (including withholding of income and social security taxes), workers’ compensation or disability benefits and like requirements and obligations.

5.4 Employee Retention. Architect agrees to maintain the organizational and administrative capacity and capabilities to carry out all duties and responsibilities under this Agreement. The personnel Architect assigns to perform the duties and responsibilities under this Agreement will be properly trained and qualified for the functions they are to perform. If specific qualifications are set forth in job descriptions required by the funding entity and/or in this Agreement, unless a written waiver is granted, Architect shall only assign personnel with the required qualifications to fulfill those functions. Notwithstanding transfer or turnover of personnel, Architect remains obligated to perform all duties and responsibilities under this Agreement without degradation and in accordance with the terms of this Agreement.

5.5 Significant Organizational Change Notification. Architect shall notify County immediately and in advance of any significant organizational change that could affect Architect's ability to carry out all duties and responsibilities under this Agreement, including any change of Architect's name or identity, ownership or control, or payee identification number. Architect shall also provide written notice to County within 10 working days of the change. Architect shall provide ownership information to County immediately upon any such change.

5.6 Adverse Actions Reporting. Architect shall inform HCED, in writing, of any concluded investigation of

Architect (including Architect’s agents, employees, volunteers, and subcontractors, as applicable, providing work, products, services, licenses and/or deliverables under this Agreement) that is conducted by or on behalf of a government entity or other licensing or accreditation entity (including any state board of examiners) and whose outcome included public censure or other public sanction (or any pending investigations, administrative actions, or lawsuits, that relate to the work under this Agreement or that could adversely affect any performance or obligation in this Agreement). If at any time a license of Architect’s agents, employees, volunteers, and subcontractors, as applicable, providing work, products, services, licenses and/or deliverables under this Agreement required to be maintained to fulfill the Commitments in this Agreement is suspended, revoked or is determined to be out of compliance in Texas or any other state, this Agreement may be terminated immediately without prior notice, at the option of HCED, effective the date of the suspension, revocation or non-compliance. Architect is not entitled to receive payment for services that were performed by Architect while the required license was suspended or revoked. Architect agrees to immediately inform HCED, in writing, of any adverse professional review action that is taken by a professional association or society and that is based on the professional competence or professional conduct of Architect’s agents, employees, volunteers, and subcontractors, as applicable, providing work, products, services, licenses and/or deliverables under this Agreement. County may, at its sole option, terminate this Agreement, upon notice of such adverse professional review action.

5.7 Subcontracts. Unless otherwise explicitly set out in this Agreement, Architect shall not enter into any subcontract for the work, products, services, licenses and/or deliverables under this Agreement unless, prior to any written authorization to proceed with work done in part by the subcontractor, Architect has provided to HCED the qualifications of the subcontractor to perform and meet the standards of this Agreement.

Architect shall comply with all Texas Administrative Code and Texas professional licensing agency requirements for choosing any professionally-licensed subcontractor.

5.8 Professional Standards. Where specifically-applicable standards are not explicitly set forth in this

Agreement, as someone with expertise in the field, Architect must provide the work, products, services, licenses and/or deliverables in accordance with generally-accepted standards applicable to Architect’s profession or industry. Architect and County agree and acknowledge that County is entering into this Agreement in reliance on the Architect's competence and qualifications, as those were presented to County by Architect with respect to professional services. Architect shall at all times utilize the skill and attention to fully, timely, and properly render professional services for the development of The Project to final completion as set out in, or reasonably inferred from, the Scope of Work/Services. This shall be done in a manner utilizing the degree of care ordinarily used by licensed professionals performing similar services on projects of a similar nature and scope within the State of Texas. An architect and a professional engineer (who have been assigned by Architect to manage the Scope of Work and who are licensed to practice in the State of Texas) shall be present and represent Architect at meetings of any official nature concerning The Project, including, but not limited to, scope meetings, status meetings, pre-bid meetings, any pre-construction meetings and any construction meetings (for construction-related projects) with County staff and/or contractors, unless otherwise set forth in the Scope of Work or approved in writing by HCED. In addition, Architect shall adhere to all applicable County architecture and engineering standards and design criteria.

5.9 County Procedures. To effectively perform the services stated above, Architect must become familiar with various procedures, policies, data collection systems, and other information of County. Architect shall adhere to all applicable County architectural and engineering guidelines, standards, and design criteria (see http://www.eng.hctx.net). HCED will assist Architect in obtaining the information. Unless otherwise required by law, Architect agrees to keep any sensitive information confidential and not disclose it to outside parties without first obtaining County’s written authorization.

5.10 Ownership of Work Product. For the purposes of assigning ownership of Architect work product, the work performed will be deemed, to the extent authorized by law, to have been done on a works-made-for-hire basis, as that term is understood in copyright law. In the event and to the extent that such works are determined not to constitute works-made-for-hire, Architect hereby irrevocably assigns and transfers to County all right, title, and interest in such works, including, but not limited to, copyrights. County shall be the absolute and unqualified owner of all completed or partially-completed Architect work product prepared pursuant to this Professional Services Agreement and shall have the same force and effect as if prepared by County, including mylar reproducibles, drawings, preliminary layouts, electronic documents and drawings, record drawings, sketches, plans, cost estimates, inventions, designs, computer input/output information, computer applications, software, firmware, computations, and other documents (including the original electronic file format). Architect may retain one set of reproducible copies for Architect's sole use in preparation of studies or reports for County only. Architect is expressly prohibited from selling, licensing or donating such documents, or using such documents in the preparation of other work for any other client, without the prior express written permission of HCED. Architect warrants that Architect's work product will not in any way constitute an infringement or other violation of any copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or any other right of any third party, and Architect will defend any claim, suit, or proceeding brought against County on the issue of infringement of any copyright by virtue of anything supplied by Architect to HCED under this Agreement.

5.11 Trade Secrets. In connection with the work, products, services, licenses, Scope of Work, and/or deliverables provided under this Agreement, HCED may disclose to Architect certain documents, data, and/or other information that is proprietary, confidential, or a trade secret (Trade Secrets). Architect must not divulge or otherwise make unauthorized use of Trade Secrets or other protected information, procedures, or policies of HCED, any former employee, contractor, client, customer, or consultant, in the exercise of duties under this Agreement. Except to the extent authorized by a third party, neither Party shall copy, recreate, or use any proprietary information of a third party in the performance of services under this Agreement.

5.12 Nondisclosure and Confidentiality of Information. To the extent permitted by law, Architect must keep confidential the contents of all discussions with local, state, and federal officials, as well as the contents of all local, state, and federal records and all other information obtained during performance under this Agreement. To fulfill Architect’s obligations under this Agreement, Architect may be provided access to information, systems, operations, or procedures that are security sensitive or have been identified as confidential. This confidential information may include information from one of the government entity funding sources, such as a Texas or federal agency. Architect and the person executing this Agreement on behalf of Architect acknowledge that (a) access to this information (whether electronic, written or oral, formal or informal) is provided solely to Architect for the purpose of discharging the duties in this Agreement, (b) premature or unauthorized disclosure of this information can irreparably harm the interests of County and may constitute a violation of state and/or federal law, and (c) the information may represent confidential or proprietary information, the release of which may be restricted or prohibited by law.

Therefore, Architect must (1) not access any information without express written authorization of HCED;

(2) not copy, recreate, or use any information or document obtained in connection with this Agreement other than for the performance of this Agreement; (3) to the extent permitted by law, keep confidential the contents of all discussions with county, state, and federal officials, as well as the contents of all county, state, and federal records and all other information obtained during performance under this Agreement, unless authorized in writing by appropriate HCED officials; (4) not, except to the extent required by law, or necessary for the performance of this Agreement, release, disclose, reveal, communicate, impart or divulge any information or any summary or synopsis of the information in any manner or any form whatsoever to outside parties without the express written consent of HCED; (5) take all steps necessary to protect confidential information from disclosure to third parties and have a system in effect that must include a method to ensure the confidentiality of records and other information relating to any person according to applicable federal and state law, rules and regulations; (6) not reproduce, copy, or disseminate such confidential information, except to those who need to know such information and are obligated to maintain its confidentiality, including Architect’s partners, principals, representatives or employees as necessary to fulfill obligations under this Agreement; (7) notify HCED immediately of all requests for confidential information; and (8) immediately report to HCED all unauthorized disclosures or uses of confidential information.

5.13 Public Comment and Public Information Act. To the extent permitted by law, all contact with the news media, citizens of County, the State of Texas or other governmental agencies concerning The Project will be the responsibility of HCED. In the event Architect is subject to the Texas Public Information Act, upon receipt of a written request for any information by Architect developed in the performance of services under this Agreement, Architect shall provide written notice to HCED of the request along with a copy of the request, and give HCED the opportunity to respond to the request prior to any release by Architect. Unless required by law, under no circumstances shall Architect release any material or information developed in the performance of services under this Agreement without the express prior written permission of HCED.

5.14 Applicable Laws. Architect shall comply (and assure compliance by Architect’s agents, employees, volunteers, and subcontractors, as applicable, providing work, products, services, licenses and/or deliverables under this Agreement) with all applicable state, federal, and local laws, ordinances, regulations, executive orders, rules, directives, standards, guidelines, and instructions relating to the work to be performed. Architect shall immediately bring to County’s attention any conflicts between any applicable state, federal, and local laws, ordinances, regulations, executive orders, rules, directives, standards, guidelines, and instructions relating to the work to be performed. If laws or regulations change and affect any provision of this Agreement, this Agreement shall be deemed amended to conform to those changes in the laws or regulations on the date such laws or regulations become effective. If any such changes (that occur after the effective date of this Agreement and that Architect should not reasonably have anticipated) require significant changes or additions to the Scope of Work that were not contemplated by the Parties, the Parties shall negotiate in good faith for the purpose of creating reasonable and equitable written modifications to this Agreement.

5.15 Records Retention and Management. Architect shall maintain complete, accurate, and readily accessible records that are necessary to document and support the fulfillment of the obligations in this Agreement, including performance, design, underlying calculations, and financial records, as well as a copy of this Agreement. Architect shall maintain and make available for inspection the Records for a minimum of four

(4) years following either the end of the federal fiscal year in which any obligations were performed under this Agreement or the termination date of this Agreement, whichever is longer (or longer if necessary to resolve any litigation, claims, financial management review, or audit findings).

5.16 Authority of Harris County Engineer. The Harris County Engineer ("County Engineer") shall decide any and all questions that may arise as to the interpretation of this Agreement and all questions as to the acceptable fulfillment of this Agreement by Architect. It is mutually agreed by both Parties that the County Engineer shall act as referee between the Parties in all questions arising under the terms of this Agreement and that the decisions of the County Engineer shall be final and binding alike on all Parties. If agreed to in writing by Architect and the County Engineer (or designee), Architect and the County Engineer may make adjustments to the Scope of Work that do not destroy the purposes of this Agreement. In making the aforementioned adjustments to the Scope of Work, Architect and the County Engineer may adjust any corresponding firm fixed or maximum prices that neither increase the maximum amount of funds that Commissioners Court has authorized to be encumbered nor destroy the purposes of this Agreement. Any of the aforementioned adjustments to the Scope of Work and/or corresponding adjustments to any firm fixed or maximum prices (collectively, “Adjustments”) may be reflected by a written Special Amendment to the Scope of Work in this Agreement (“Special Amendment”). Nothing contained in this section shall be construed to authorize the County Engineer to alter, vary, or amend any of the terms or provisions of this Agreement, other than the aforementioned Adjustments. The County Engineer is authorized on behalf of the County to make Adjustments (as defined herein) and execute a corresponding Special Amendment without further action by Commissioners Court. The Harris County Auditor ("County Auditor") is authorized, without further action by Commissioners Court, to certify additional funding for any Adjustments upon execution of a Special Amendment by the County Engineer.

5.17. Foreign Terrorists Organizations. In accordance with Tex. Gov’t Code Ann. Chapter 2252 Subchapter F, Architect warrants and represents that, at the time of execution of this Agreement and for the duration of the Term of this Agreement and any Renewal Terms, Architect does not appear on the Texas State

Comptroller’s list of companies known to have contracts with or provide supplies or services to a foreign terrorist organization.

5.18 Anti-Boycott. In accordance with Tex. Gov’t Code Ann. § 2270.002, Architect warrants and represents that it does not boycott Israel and agrees that it will not boycott Israel during the term of this contract.

6. INSURANCE

6.1 Coverage and Limits. During the Term of this Agreement and any extensions thereto, Architect at its sole cost and expense shall provide insurance of such type and with such terms and limits as may be reasonably associated with this Agreement. As a minimum, Architect shall provide and maintain the following coverage and limits:

(a) Workers Compensation, as required by the laws of Texas, and Employers’ Liability, as well as

All States, United States Longshore & Harbor Workers Compensation Act and other endorsements, if applicable to the Project, and in accordance with state law.

Employers’ Liability

(i) Each Accident $1,000,000

(ii) Disease – Each Employee $1,000,000

(iii) Policy Limit $1,000,000

(b) Commercial General Liability, including but not limited to, the coverage indicated below. This policy will provide coverage for personal and bodily injury, including death, and for property damage, and include an endorsement for contractual liability. Coverage shall not exclude or limit the Products/Completed Operations, Contractual Liability, or Cross Liability. Where exposure exists, County may require coverage for watercraft, blasting, collapse, explosions, blowout, cratering, underground damage, pollution, and other coverage. County shall be named Additional Insured on primary/non-contributory basis.

(i) Each Occurrence $1,000,000

(ii) Personal and Advertising Injury $1,000,000

(iii) Products/Completed Operations $1,000,000

(iv) General Aggregate (per project) $1,000,000

(c) Professional Liability/Errors and Omissions, in an amount not less than One Million Dollars ($1,000,000) per claim and in the aggregate.

(d) Umbrella/Excess Liability in an amount not less than One Million Dollars ($1,000,000) per occurrence and in the aggregate. County shall be named Additional Insured on primary/non-contributory basis.

(e) Automobile Liability insurance to include Architect’s liability for death, bodily injury, and property damage resulting from Architect’s activities covering use of owned, hired, and non-owned vehicles, with combined single limit of not less than One Million Dollars ($1,000,000) for each accident. County shall be named Additional Insured on primary/non-contributory basis.

(f) Any other coverage required of Architect pursuant to statute.

6.2 Delivery of Policies. Immediately upon execution of this Agreement and before any Services are commenced by Architect, Architect shall provide County evidence of all of the above coverage on forms and with insurers acceptable to County. Architect must maintain a valid Certificate of Insurance as described herein on file with County at all times during the term of this Agreement. Architect must either

(1) mail the Certificate of Insurance to the Harris County Engineering Department at 1111 Fannin Street, 11th Floor, Houston, TX 77002, Attn: Administrative Services or (2) submit it by email to HCEDAdminSvcs@hcpid.org.

6.2.1 Issuers of Policies. Coverage shall be issued by company(s) licensed by the Texas Department of

Insurance to do business in Texas, unless said coverage is not available or economically feasible except through an excess or surplus lines company, in which case the company(s) should be registered to do business in Texas. Companies shall have an A.M. Best rating of at least A-VII.

6.2.2 Certificates of Insurance. Architect shall provide unaltered Certificates of Insurance which evidence the required coverage and endorsements and satisfy the following requirements:

(a) Be less than 12 months old;

(b) Include all pertinent identification information for the Insurer, including the company name and address, policy number, NAIC number or AMB number, and an authorized signature;

(c) Include the Project name and reference numbers and indicates the name and address of the Project Manager in the Certificate Holder Box; and

(d) Be appropriately marked to accurately identify:

(i) All coverage and limits of the policy;

(ii) Effective and expiration dates;

(iii) Waivers of subrogation, endorsement of primary insurance and additional insured language, as described herein.

6.2.3 Certified Copies of Policies and Endorsements. Upon request, Architect shall furnish certified copies of insurance policies and endorsements to County.

6.2.4 Renewal Certificates. Renewal certificates are due to County at least thirty (30) days prior to the expiration of the current policies.

6.2.5 Subcontractors. If any part of the Agreement is sublet, insurance shall be provided by or on behalf of any subcontractor, and shall be sufficient to cover their portion of the Agreement. Architect shall furnish evidence of such insurance to County as well.

6.3 Additional Insured. Architect shall include County and its respective officers, directors, agents, and employees as an Additional Insured on the Commercial General Liability, Automobile Liability, and Umbrella/Excess Liability insurance certificates. Architect’s coverage shall be primary insurance to any similar insurance maintained by County and must contain an endorsement stating such. Coverage to County as an Additional Insured on any of Architect’s insurance coverage shall not be subject to any deductible.

6.4 Deductibles. Architect shall be responsible for and pay any claims or losses to the extent of any deductible amounts applicable under all such policies and waives any claim it may have for the same against County, its officers, directors, agents, or employees.

6.5 Claims-made Policies. All insurance policies written on a claims-made basis, including Professional

Liability/Errors and Omissions, shall be maintained for a minimum of two (2) years following completion of all services under this Agreement (“Extended Reporting Period”). Architect shall obtain or maintain full prior acts coverage at least to the effective date of this Agreement in the event of a carrier or policy change.

6.6 Waiver of Subrogation. Architect waives any claim or right of subrogation to recover against County, its officers, directors, agents, and employees (“Waiver of Subrogation”). Each policy required under this Agreement must contain a Waiver of Subrogation endorsement.

6.7 Notice of Cancellation, Non-Renewal, or Material Change. Architect shall provide County with thirty (30) days’ minimum written notification in the event of cancellation, non-renewal, or material change to any or all of the required coverage.

6.8 Remedies for Noncompliance. Failure to comply with any part of this Section is a material breach of this

Agreement. Architect could immediately, and without notice, have all compensation withheld or suspended, be suspended from providing further Services, or be terminated from this Agreement for any lapse in coverage or material change in coverage which causes Architect to be in noncompliance with the requirements of this Section.

7. FUNDING, COMPENSATION AND/OR BASIS FOR PAYMENT, METHOD, AND LIMITATIONS

7.1. Payments/Compensation. For and in consideration of the work, products, services, licenses or deliverables provided under this Agreement and during the term of this Agreement, subject to the limitations in this Agreement, County shall pay Architect in accordance with the fee schedule and rates specified in this Agreement, including in the Attachments up to the total maximum amount specifically appropriated, encumbered, and then certified as available by the County Auditor.

7.2. Funding and Appropriations Limit. County shall have no obligation to pay for and Architect shall have no obligation to provide any work, products, services, licenses and/or deliverables until sufficient funds are certified by the County Auditor. County intends to initially appropriate, encumber, and certify as available by the County Auditor the total maximum sum of $Click here to enter text. to pay and discharge any and all liabilities that County may incur arising out of this Agreement. Any other provision notwithstanding, County shall never be liable to pay Architect any greater amount under this Agreement than is specifically appropriated, encumbered, and then certified as available by the County Auditor.

7.3. Auditor's Certification of Funds. The issuance of a purchase order pursuant to this Agreement represents certification by the Harris County Auditor that funds, in the amount of the purchase order total, are available to satisfy all financial obligations of Harris County hereunder.

7.4. Funding Out/Non-Appropriation. It is further understood that pursuant to Local Government Code Chapter

111, when and if the work, products, services, licenses and/or deliverables and charges provided for herein are equal to or exceed the amounts certified available, Architect is authorized to terminate some or all of Architect’s work, products, services, licenses and/or deliverables under this Agreement unless the County Auditor certifies that additional funds are available, in which event Architect agrees to continue to provide the products, services and/or deliverables to the extent funds are available. When all the funds certified by the County Auditor, together with any additional funds thereafter certified, are expended, County will have no further liability, and the sole and exclusive remedy of Architect will be to immediately terminate this Agreement unless the County Auditor certifies additional funds.

7.5. Billing Statements/Invoices. Unless otherwise indicated in this Agreement, no later than the 10th day after the end of each calendar month within the term of this Agreement, Architect shall submit to HCED a billing statement or invoice for all unpaid products, services and/or deliverables, along with any applicable rates, including the applicable firm fixed price and any applicable percentage completed for specific tasks/deliverables as specified in this Agreement. The data in the billing statement or invoice must be in a format designated by HCED and the County Auditor, and must include any purchase order number. An authorized agent of Architect must certify and swear under penalty of perjury that the work was performed, the work was properly authorized in writing by HCED, and all information contained in the statement or invoice is true and correct. All products, services and/or deliverables billed must be rendered during this Agreement term. Architect shall submit to HCED billing statements or invoices limited to work done and products, services and/or deliverables provided pursuant to this Agreement, and Architect shall not include in such billing statements or invoices any work, products, services, licenses and/or deliverables provided, required to be performed, or billed under or pursuant to any other agreements with County. HCED will review each statement or invoice and approve it with any modifications HCED deems appropriate after mutual consultation and agreement with Architect. HCED will then forward the approved statement or invoice to the County Auditor for payment. County will pay Architect the proper amounts due and owing under this Agreement within thirty (30) calendar days of receipt of the approved statement or invoice to extent allowed by law. Each statement or invoice must include a monthly inventory of work, products, services, licenses and/or deliverables provided during the billing period and any other details HCED reasonably requests for verification purposes, which might include:

(a) The date(s) work, products, services, licenses and/or deliverables were provided;

(b) Meetings and lists of attendees, if applicable;

(c) Detailed description of the work, products, services, licenses and/or deliverables provided;

(d) The total amount billed, and any other details of the work, hours, or services as may be requested by the County Auditor;

(e) If applicable, the case number for which services were performed;

7.6. Overpayments. Within 10 calendar days after request by HCED, Architect must reimburse to County all funds paid by County to Architect that any funding entity or auditor determines have been improperly paid to, or expended by, Architect. County may withhold, suspend, or reduce any and all payments due to Architect until any overpayments are reimbursed.

7.7. Costs of Substitute Services. If Architect fails to perform any of its obligations under the Agreement and

County procures substitute services upon such terms as are appropriate, County shall deduct the reasonable costs for such services from any payments owed to Architect under this or other agreements. Architect must reimburse to County, within thirty (30) calendar days after request by County, any additional costs of such substitute services beyond what has already been deducted by County. County may also withhold, suspend, or reduce payments due to Architect until the costs of such substitute services are reimbursed to County by Architect. This provision is not intended to waive or preclude any other remedies the parties may otherwise have in law, equity, or elsewhere in this Agreement and is in addition to and not in lieu of any other remedies.

7.8. Billing Audits. County and its designee shall have the right to examine and audit all of Architect’s billings/invoices and all of Architect’s backup and support data for billings/invoices for this Agreement.

Upon HCED’s request, Architect agrees to make such data and supporting documentation available to the County Auditor or designee in Harris County, Texas. Architect shall maintain complete and accurate records necessary to fulfill any obligations in this Agreement, including a copy of this Agreement, including detailed time records identifying each person performing services that were billed on an hourly basis, the corresponding dates of the services, the applicable firm fixed price and the percentage completed for specific tasks as specified in this Agreement, any applicable hourly or cost-plus rates, the total amount billed for each person as applicable, and the total amount billed for all persons as applicable. Architect shall maintain and make available for inspection (electronically or in Harris County during regular business hours) the Records for a minimum of four (4) years following either the end of the federal fiscal year in which any obligations were performed under this Agreement or the termination date of this Agreement (or longer if necessary to resolve any litigation, claims, financial management review, or audit findings). All payments made by County are subject to re-evaluation and refund or withholding of future payments conditioned on the results of the audit.

7.9. County Auditor to Make Final Decision. The decision of the County Auditor as to the amount owed shall be final if there is any dispute between County and Architect as to the amount owed to Architect for any monthly statement or invoice submitted by Architect. County agrees to notify Architect of any questionable item and is authorized to withhold payment until all questions are resolved either by final audit or by agreement of the Parties.

8. TERM OF THE AGREEMENT

8.1 Time Period. The time period for performance ("Term") of this Agreement shall begin Click here to enter text. and end on the later date of (a) the Project completion or (b) Click here to enter text..

9. TERMINATION PROVISIONS

9.1 Determination of Material and Non-Material Breaches. The County Engineer shall determine whether a breach of this Agreement by either Party is material or non-material. The County Engineer’s determination shall be final and binding alike on all Parties.

9.2 Non-Material Breaches. If either Party refuses or fails to perform any of its non-material obligations in this

Agreement, the other Party may give written notice of the failure. If the breaching Party fails or refuses to cure the failure of any non-material obligation in the notice within ten (10) calendar days after notice is given, the other Party may terminate this Agreement immediately. HCED is authorized to give notice for County.

9.3 Material Breaches.

9.3.1 Suspension. HCED may suspend this Agreement immediately for any material breach by giving a notice of suspension. As soon as the notice of suspension is received, Architect shall discontinue all services in connection with the performance of this Agreement. HCED is authorized to suspend on behalf of County.

9.3.2 Termination. The County may terminate this Agreement for a material breach at any time by notice in writing to the Architect.

9.4 No Waiver of Remedies. The provisions in this Section are not intended to waive or preclude any other remedies the parties may otherwise have in law, equity, or elsewhere in this Agreement. The right to terminate for a material and non-material breach is in addition to and not in lieu of any other remedies.

9.5 Termination Statement. As soon as practicable after receiving notice of termination, Architect must submit a statement or invoice to HCED that complies with the requirements in this Agreement. This statement or invoice must show in detail the unbilled/uninvoiced services performed for County under this Agreement to the date of termination. If the payments were to be made in lump sums and services were rendered after the last lump sum payment, the statement or invoice shall reflect the prorated amount due.

9.6 Return of Documents after Termination. If permitted by law and any established ethical requirements applicable to specific professionals, Architect shall promptly deliver to HCED all completed or partially completed work product, designs, data, information, and documents prepared under this Agreement on behalf of County. Within 2 business days after the effective date of termination, Architect shall return to HCED all records, files, documents, notes and other items in Architect’s possession, if any, relating to any assignments or work that Architect has undertaken or been given under this Agreement, if permitted by law and any established ethical requirements applicable to specific professionals. Architect shall deliver to HCED all completed or partially-completed designs, drawings and specifications prepared under this Agreement, including the original electronic file format. Nothing in this section is intended to require Architect to surrender Architect’s own records to HCED after termination.

9.7 Agreement Transition. In the event the Agreement ends by either expiration or termination, Architect shall, at the request of the County, assist in the transition until such time that a replacement architect can be named. Architect acknowledges its responsibility to cooperate fully with the replacement architect and the County to ensure a smooth and timely transition to the replacement architect. Such transitional period shall not extend more than ninety (90) days beyond the expiration/termination date of the Agreement, or any extension thereof. During any transition period, all other terms and conditions of the Agreement shall remain in full force and effect as originally written.

10. INDEMNIFICATION

10.1 No Waiver of Governmental Immunity. County does not waive any immunity or defense on behalf of itself, its employees or agents as a result of the execution of this Agreement.

10.2 General Indemnity. To the extent allowed by law, Architect agrees to indemnify and hold harmless County, HCED, their officers, employees, and agents from liability, losses, expenses, demands, reasonable attorneys' fees, and claims for bodily injury (including death) and property damage to the extent caused by the negligence, intentional tort, intellectual property infringement of Architect (including Architect’s agents, employees, volunteers, and subcontractors/consultants under contract, or any other entity over which Architect exercises control, in the performance of the services defined in this Agreement). Architect shall also save County harmless from and against any and all expenses, including reasonable attorneys' fees that might be incurred by the County, in litigation or otherwise resisting such claims or liabilities.

11. MISCELLANEOUS

11.1 Notices. Any notice required to be given under this Agreement ("Notice") may be given by hand delivery or certified United States Mail, postage prepaid, return receipt requested, addressed to the Parties at the following:

ARCHITECT: Click here to enter text.

Email:

COUNTY: Dr. Milton Rahman, PhD, P.E., PMP, CFM, ENV SP, Executive Director & County Engineer Harris County Engineering Department 1111 Fannin Street, 11th Floor Houston, TX 77002 Email: AgreementInfo@hcpid.org

All other communications may be sent by electronic means or in the same manner as Notices described herein.

11.2 Receipt of Notice. Notice shall be considered given and complete upon successful electronic transmission or upon deposit in the United States Mail.

11.3 Change of Address. Each Party shall have the right to change its respective address by giving at least ten

(10) days’ written notice of such change to the other Party.

11.4 Force Majeure. Neither Party will be liable for any failure or delay in performing its obligations under this

Agreement if such failure or delay is due to any cause beyond the reasonable control of such Party if such cause is generally recognized under Texas law as constituting impossible conditions. The existence of such causes of delay or failure will extend the period of performance in the exercise of reasonable diligence until after the causes of delay or failure have been removed.