Rev. 3-3-15
DESIGN AGREEMENT BETWEEN OWNER AND ARCHITECT/ENGINEER
1. Parties. The parties to this agreement are:
Owner:
The Most Reverend Joe S. Vasquez, Bishop of the Catholic Diocese of Austin and
his successors in office whose address is 6225 US Highway 290 E, Austin, TX
78723, for the benefit of
Parish
Email:
; and
Architect/Engineer:
whose address is
Email:
2. Project Description and Budget.
A. Architect/Engineer shall perform the professional services as described in this agreement
for following purpose, which is known as the “Project”:
Name of Project:
Address of Project:
Description of Project to be constructed:
B. Owner’s Project Construction Budget is $
.
The Project
Construction Budget shall not include any architect's, engineer's, or consultant's fees and
shall not include costs of any furniture, material, equipment, or services furnished by
Owner.
3. Architect/Engineer’s Compensation. For Architect/Engineer’s services, Owner shall
compensate Architect/Engineer as follows.
A. Basic Services. For the Basic Services described in Paragraph 4, Owner shall pay
Architect/Engineer a fee of $
payable in proportion to the services
performed as follows:
(1) Completion of Schematic Design Phase
%
(2) Completion of Design Development Phase
%
(3) Completion of Construction Documents Phase
%
(4) Completion of Bidding or Negotiation Phase
%
(5) Construction Phase, which amount will be paid
based upon the percentage of completion of
construction contract
%
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B. Additional Services.
(1) For the Additional Services described in Paragraph 5, Architect/Engineer shall submit
to Owner a written proposal for the Additional Services and the compensation for the
Additional Services. Architect/Engineer shall not perform such Additional Services
until:
(a) Owner agrees in writing to the scope of such Additional Services and Owner gives
written authorization to Architect/Engineer to perform the Additional Services; and
(b) both Owner and Architect/Engineer have agreed in writing to the amount of
compensation Owner shall pay Architect/Engineer for the Additional Services.
(2) Strict compliance with Paragraph 3B(1) is required. Architect/Engineer assumes
the risk for receiving no compensation for the Additional Work if performed prior
to satisfying Paragraph 3B(1).
Any decision by Owner to compensate
Architect/Engineer for the Additional Work performed prior to satisfying Paragraph
3B(1) is at Owner’s sole discretion and shall not be subject to suit or appeal of any
kind.
C. Reimbursable Expenses.
(1) Owner shall reimburse Architect/Engineer 1.05 times the actual amounts
Architect/Engineer expends for the following items if Owner has given
Architect/Engineer advanced, written authority to incur such expenses:
(a) transportation in connection with the Project, with mileage paid at the then current
rate published by the Internal Revenue Service, provided, however, that mileage
shall not be reimbursed for the first 100 miles of any travel to or from the Project;
(b) lodging expenses in connection with authorized out-of-town travel;
(c) reproduction of plans and specifications or other documents except for those
included in the Basic Services; and
(d) filing and permit fees for the approval of the Project with governmental entities
with jurisdiction over the Project.
(2) Expenses not approved by Owner in advance are the sole responsibility of
Architect/Engineer.
D. Payment Requests. Architect/Engineer shall send payment requests for compensation and
reimbursable expenses only after each phase of service is complete and only once each
month to the attention of Owner’s Construction Manager at 6225 Highway 290 East,
Austin, Texas 78723. Payment requests shall be supported by a description of the services
performed, invoices, time sheets, and other evidence of expense as requested by the Owner.
Owner shall pay approved payment requests within 30 days after receipt of all required
documentation and information.
4. Basic Services.
A. When Architect/Engineer renders services under this agreement, Architect/Engineer shall:
(1) comply with Owner’s Instruction to Architect/Engineer;
(2) comply with Owner’s Design Requirements; and
(3) use Owner’s contract forms in connection with the Project, except where otherwise
specified.
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B. Schematic Design Phase. If Architect/Engineer has not completed the Schematic Design
Phase of the Project, Architect/Engineer shall:
(1) consult with Owner to ascertain the requirements and limitations of the Project,
including but limited to liturgical design requirements;
(2) retain all architectural, structural, civil, mechanical, electrical, engineering,
landscaping, liturgical , and other consultants reasonably necessary to complete the
Project, identify such consultants in Attachment “A,” and compensate such
consultants from Architect/Engineer’s compensation for Basic Services except when
Owner gives advance written consent that the consultants will be compensated as an
Additional Service;
(3) observe and inspect existing site and building conditions;
(4) make measured drawings of existing buildings and construction on the site, including
such mechanical, electrical, plumbing, and other components as may be required to
coordinate proper interfacing of new construction with existing construction;
(5) prepare schematic design studies to recommend a general description of the proposed
design for the Project for Owner’s approval;
(6) establish, in collaboration with Owner, a schedule of dates for completion of the
various phases of Architect/Engineer’s work;
(7) prepare and deliver to Owner a written statement of the probable construction cost for
the Project;
(8) promptly notify Owner, in writing, if it appears that the written statement of the
construction cost of the Project will exceed the Project Construction Budget;
(9) revise the schematic plans, at no further cost to Owner, if the written statement of the
construction cost of the Project will exceed the Project Construction Budget to bring
the cost of the Project within the Project Construction Budget, unless Owner
approves the excess cost of the Project in writing;
(10) provide Owner schematic plans in format appropriate for presentation to Owner,
which shall include, but not be limited to:
(a) a site plan, locating and noting major improvements;
(b) a floor plan naming major spaces and noting the total square footage;
(c) a depiction of major building elevations; and
(d) schematic drawings of the scope of the Project; and
(11) obtain Owner’s written approval before proceeding to the next phase of the Project.
C. Design Development Phase. Architect/Engineer shall:
(1) prepare from the approved schematic design studies, the Design Development
Documents consisting of plans, elevations, other drawings, and an outline of
specifications to fix and illustrate the size, character and general appearance of the
Project;
(2) collaborate with Owner, Owner’s construction manager, Parish’s construction manager
and Owner’s other consultants, if applicable, on the selection of materials, equipment,
systems, finishes, and methods of construction;
(3) submit liturgical programming and designs to Owner for review and approval if Project
includes liturgical space;
(4) prepare a revised estimate and deliver to Owner a written statement of the estimated
construction cost;
(5) promptly notify Owner in writing if it appears that the Project will exceed the Project
Construction Budget and, unless any increase in the Project Construction Budget is
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approved in writing by Owner, Architect/Engineer shall, at its cost, in consultation with
Owner revise the Design Development Documents to bring the Project within the
Project Construction Budget;
(6) retain all consultants reasonably necessary to complete the Project, identify such
consultants in Attachment “A,” and compensate such consultants from
Architect/Engineer’s compensation for Basic Services except when Owner gives
advance written consent that the consultants will be compensated as an Additional
Service; and
(7) obtain Owner’s written approval before proceeding to the next phase of the Project.
D. Construction Documents Phase. Architect/Engineer shall:
(1) prepare, from the approved Design Development Documents, the Construction
Documents consisting of the final plans and specifications of the Project setting forth in
detail the work required for the architectural, construction, structural, electrical,
mechanical, civil and service-connected equipment for the Project;
(2) collaborate with Owner, Owner’s construction manager, Parish’s construction manager,
and Owner’s other consultants, if applicable, on the form and manner in which the
Project is presented in the Construction Documents;
(3) prepare the Construction Documents in compliance with all applicable laws, codes,
ordinances, and regulations and present the Construction Documents to all applicable
governmental agencies for evaluation and approval, provided, however, if the Project is
located outside the corporate limits of a city that does not require permits or building
codes, Architect/Engineer shall prepare the Construction Documents to meet all laws,
codes , ordinances, and regulations as required by the closest city to the Project with a
population over 50,000;
(4) make any revisions to the Construction Documents which may be necessary to obtain
approval from any applicable governmental agency and to meet other criteria specified
by Owner;
(5) provide Owner with 2 sets of plans and specifications for review and approval in a
format Owner specifies;
(6) upon completion of the Construction Documents obtain Owner’s approval of the
Construction Documents and Owner’s approval of the latest estimate of the
construction cost;
(7) rework, at Architect/Engineer’s cost, the Construction Documents and other documents
as may be necessary to correct errors in the designs, drawings, plans, specifications or
other documents or as may be necessary to bring the Project within the Project
Construction Budget; and
(8) obtain Owner’s written approval before proceeding to the next phase of the Project.
E. Bidding and Negotiation Phase. Architect/Engineer shall:
(1) assist Owner in securing and obtaining bids or negotiated proposals and in securing,
awarding, and preparing necessary contracts for construction of the Project unless
Owner has retained a construction manager at risk (CMR) and instructs
Architect/Engineer not to perform the services under this provision;
(2) revise the Construction Documents, at Architect/Engineer’s cost, if the bids for
construction exceed the Project Construction Budget in order to bring the Project within
the Project Construction Budget, unless Owner approves the increase in the Project
Construction Budget in writing;
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(3) file, before construction commences, the contractor’s Performance and Payment Bonds
in the office of the county clerk in the county in which the Project is located; and
(4) if Owner has retained a CMR:
(a) incorporate into the Construction Documents the CMR’s schedule, insurance
requirements, subcontract, and other documentation provided by the CMR given for
the purpose of CMR obtaining bids from subcontractors; and
(b) cooperate with the CMR to establish a guaranteed maximum price for the Project.
F. Construction Phase. Architect/Engineer shall:
(1) abide by Architect/Engineer’s requirements contained in the Owner’s “General
Contitions” that are applicable to the contract with the Project’s general contractor or
construction manager at risk;
(2) administer the construction of the Project including but not limited to providing
Owner advice and consultation about the Contract Documents, construction of the
Project, preparing change orders, and providing clarification of the Construction
Documents;
(3) within 14 days after receipt of the contractor's submittals such as shop drawings,
product data and samples required by the Construction Documents, critically review
and report to Owner or take other appropriate action and respond to contractor in
writing, but only for conformance with the design concept of the Project and with the
information given in the Contract Documents;
(3) within 3 days after receipt of contractor’s request for information (RFI), critically
review, report to Owner, and respond to contractor’s RFI;
(4) amend the Construction Documents in connection with change orders that do not
constitute a material or significant re-design of the Project or a system or component
in the Project;
(5) provide services in connection with evaluating substitute items for construction and in
revising any documentation in connection with such substitutions;
(6) visit the construction site of the Project at regular intervals, at least weekly, to become
familiar with the progress and quality of the construction completed, to critically
observe and inspect the construction and materials supplied by the contractor, to
determine whether the contractor’s performance is in conformity with the
Construction Documents, and to promptly report to Owner any deficiencies along
with Architect/Engineer’s recommendations for correction;
(7) record each job-site visit and promptly submit written reports to Owner to keep
Owner informed of the progress and quality of the construction;
(8) review all requests for payments submitted by the contractor to determine completion
of the construction for which such requests are made;
(9) approve, edit, or deny contractor’s pay requests and forward the pay requests to
Owner for payment;
(10) upon receipt of notification from the contractor that the Project is substantially
complete, conduct a review to determine if the Project is substantially complete and
prepare a list of items observed requiring correction by the contractor;
(11) notify Owner in writing, after the contractor has made all required corrections, that
the contractor has completed construction and the Project is ready for final
inspection;
(12) schedule the final inspection and accompany Owner at the final inspection to assure
that the Project has been completed in accordance with the Construction Documents;
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(13) review and inspect all warranties, guarantees, bonds, equipment operating
instructions, and similar material and documents to make sure that all such materials
and documents are received and that they meet the requirements of the Construction
Documents, after which Architect/Engineer shall transmit the material and documents
to Owner;
(14) update the Construction Documents to reflect accurate, as-built conditions from
information furnished by contractor and make changes in the original documents to
show, to the best of Architect/Engineer’s knowledge, information and belief, the asbuilt condition of the Project and final location of the mechanical service lines and
outlets, and shall forward to Owner 2 copies the Construction Documents in
electronic format reasonably acceptable to Owner;
(15) after determining that, to the best of his knowledge, information, and belief, the
requirements of the Construction Documents have been met, state such in writing to
Owner and recommend final payment to the contractor, both of which should be
stated in the contractor’s final application for payment;
(16) upon completion of construction, complete the Project summary data in the format
required by Owner and submit it to Owner together with a 4 x 6 inch color exterior
photograph and a 8 ½ x 11 inch floor plan of the Project; and
(17) during the 11th month following completion of the Project, arrange for a warranty
inspection tour of the Project by Owner, Architect/Engineer, and the contractor, and
prepare a list of work needing to be done by the contractor to satisfy the contractor's
warranty obligations.
G. Owner’s acceptance and approval of the Construction Documents during any phase
described in Paragraphs 4B-F shall not:
(1) constitute nor be deemed a release of the Architect/Engineer for the accuracy and
competency of the Architect/Engineer’s designs, drawings, specifications, other
documents or services; or
(2) relieve Architect/Engineer of Architect/Engineer’s responsibility for designing the
Project within the Project Construction Budget.
H. In the performance of services described under Paragraphs 4B-F, Architect/Engineer:
(1) may inform the contractor of Architect/Engineer’s findings but Architect/Engineer does
not direct or control the contractor in the performance of the construction;
(2) shall not be responsible for non-architectural or non-design construction means,
methods, techniques, sequences or procedures used by the contractor;
(3) shall not be responsible for safety precautions and programs in connection with the
contractor’s work; and
(4) shall not be responsible for the contractor's schedules or contractor's failure to perform
under the agreement between Owner and the contractor.
I. The certificates of payment that Architect/Engineer reviews and approves under Paragraphs
4B-F shall be representations that:
(1) Architect/Engineer has made the required on-site observations and inspections;
(2) construction has progressed to the point indicated in the application; and
(3) to the best of Architect/Engineer’s knowledge, information and belief, the quality of the
work is in accordance with the Construction Documents.
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5. Additional Services.
A. If Owner requests in writing that Architect/Engineer provide services outside the Basic
Services, (the “Additional Services”) Architect/Engineer shall submit to Owner a written
proposal for the Additional Services (including but not limited to the scope of such
services) and the proposed compensation for the Additional Services. Architect/Engineer
shall not perform such Additional Services until the Owner has approved the proposed
Additional Services in writing and both parties have agreed in writing to the scope of the
Additional Services and the amount of compensation Owner shall pay Architect/Engineer
for the Additional Services.
B. Additional Services may include but are not limited to:
(1) providing
(a) detailed estimates of construction cost;
(b) analyses of owning and operating costs;
(c) detailed quantity surveys or inventories of material, equipment and labor; or
(d) providing interior design and other similar services required for or in connection
with the selection, procurement or installation of furniture, furnishings and related
equipment;
(2) preparing drawings, plans, specifications and supporting data and providing other
services in connection with change orders, exclusive of: (i) the services related to
change order provided under Paragraph 4F(4); and (ii) the services remedying errors or
omissions of the Architect/Engineer;
(3) preparing renderings, models, and mock-ups;
(4) retaining additional engineers, designers, artists, and consultants not identified in
Attachment A;
(5) attending public hearings which may be required as a result of proposed changes to the
Project;
(6) presenting program changes and schematic plans to groups other than Owner, Parish
and Owner’s affiliates or internal organizations; or
(7) providing services in connection with a public hearing, arbitration proceeding or legal
proceeding except where the Architect/Engineer is a party.
6. Owner’s Responsibilities. In addition to other obligations under this agreement, Owner shall:
(i) provide information as to the requirements for the Project and procedures to be followed;
(ii) examine documents submitted by the Architect/Engineer and shall render decisions related
to the Project promptly, to avoid unreasonable delay in the progress of the Architect/Engineer’s
work; (iii) obtain and pay for surveys, test borings and laboratory analyses of soil foundation
conditions if necessary for the Project; and (iv) furnish to the Architect/Engineer, for inclusion
in the construction contract documents, a copy of each of Owner’s Agreement for Construction
Contract, General Conditions, forms of bonds, Instructions to Bidders, Invitation to Bid and
Change Order.
7. Termination.
A. Owner may terminate this agreement without cause by providing Architect/Engineer at
least 7 days written notice of termination. If Owner terminates under this paragraph,
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Architect/Engineer shall be entitled to compensation for services performed through the
date of termination and incurred reimbursable expenses.
B. Architect/Engineer may terminate this agreement by providing not less than 7 days written
notice to Owner if Owner abandons the Project for more than 90 consecutive days. If
Architect/Engineer terminates under this paragraph, Architect/Engineer shall be entitled to
compensation for services performed through the date of termination and incurred
reimbursable expenses.
C. If a party fails to comply with an obligation under this agreement and fails to cure the noncompliance within 20 days after receiving written notice of the non-compliance from the
other party, the other party may terminate this agreement and shall be entitled to exercise
all legal and equitable remedies available under law.
8. Successors and Assigns. This agreement is binding upon and inures to the benefit of each
party’s successors and permitted assigns. Architect/Engineer may NOT assign, sublet, or
subcontract this agreement in whole or part, without Owner’s prior, written consent. Except as
to the Parish, this agreement does not inure to the benefit of any third party who is neither an
assignee or a successor of either party.
9. Architect/Engineer’s Standard of Care, Representations, and Waiver of Economic Loss
Rule.
A. No examination, inspection, approval, acceptance, or payment by Owner shall excuse
Architect/Engineer from performing in strict accord with the standards of knowledge,
judgment, care and diligence generally adhered to by persons legally practicing
Architect/Engineer’s profession within the State of Texas.
B. Architect/Engineer warrants and represents that all work and designs completed pursuant to
this agreement, including the preparation of schematic designs and master plans, shall meet
applicable building codes, regulations, or other legal requirements applicable thereto.
C. Economic Loss Rule Waiver. Architect/Engineer is knowingly and expressly waiving the
applicability of the legal doctrine commonly known as the “Economic Loss” rule with
respect to its work under this Agreement. Moreover, Architect/Engineer acknowledges that
it is knowingly agreeing that the “Economic Loss” rule or defense shall not be raised,
applied, allowed or otherwise asserted in response to a claim by Owner against
Architect/Engineer for Architect/Engineer’s alleged negligence or other claim related to
Architect/Engineer’s alleged breach of the standard of care applicable to an architect or
engineer. Furthermore, Architect/Engineer agrees that it shall be subject to liability and
damages for its own professional negligence and that of its principals, owners, employees,
agents and other representatives regardless of the fact that Architect/Engineer’s work is the
subject of this Agreement.
10. Ownership of Drawings.
A. The design of the Project and the original Construction Documents of the Project are the
property of Architect/Engineer, provided, however, Architect/Engineer shall promptly
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provide to Owner, upon the completion of the Project or any earlier termination of this
agreement, a complete reproducible copy of the Construction Documents in accordance
with the terms of this agreement.
B. Owner may use any and all copies of the Construction Documents and other documents
provided to Owner under any provision of this agreement without Architect/Engineer’s
permission or additional compensation to the Architect/Engineer, for any purpose relating
to the Project, including, but not limited to, adding to, rebuilding, renovating, modifying,
maintaining, or completing the Project.
C. Owner may use the design of the Project and the Construction Documents in Owner’s other
projects without Architect/Engineer’s permission or additional compensation to the
Architect/Engineer. If Owner uses the design or Construction Document for other projects,
without Architect/Owner’s involvement, Owner releases the Architect/Engineer’s from any
liability relating to the other Projects.
11. Insurance.
A. Professional Liability Insurance. During all times this agreement is in effect and for 3
years thereafter, Architect/Engineer shall maintain in force Architects and Engineers
Professional Liability Insurance (the “Policy”) in an amount equal to or greater than the
lesser of: (i) 80% of Owner’s Project Construction Budget as defined in Paragraph 2B; or
(ii) $2,000,000. The Policy may have a deductible of not more than 2%.
B. Architect/Engineer shall carry throughout term of this agreement, at Architect/Engineer’s
expense, insurance of not less than the following amounts:
Coverage
Amount
Workers' Compensation
Statutory
Professional Errors & Omissions Liability Coverage
As required by
Paragraph 11A
Commercial General Liability Insurance
Each occurrence
Annual Aggregate
$1,000,000
$2,000,000
Business Automobile Liability
Bodily Injury, each occurrence
Property Damage, each occurrence
$1,000,000
$1,000,000
C. Architect/Engineer shall comply with the following regarding the required insurance
coverage.
(1) Architect/Engineer shall obtain and maintain the required insurance from and with
insurance companies rated “A- VI” or better by AM Best and acceptable to Owner.
(2) The required Commercial General Liability insurance shall:
(a) be written on ISO form CG 00 01 12/04 or equivalent with products/completed
operations coverage which shall include premises/operations liability,
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independent contractors liability, and broad form contractual liability specifically
in support of, but not limited to, the indemnity provisions set forth in this
agreement to the fullest extent allowed by law;
(b) include a waiver of subrogation in favor of Owner and Parish;
(c) be endorsed to include the Owner and Parish as an Additional Insured using
CG2010 (11/85) or equivalent;
(d) contain cross-liability and severability of interest coverage;
(e) shall state that such insurance is primary to and non-contributory with any other
insurance carried by Owner and Parish; and
(f) include a per project aggregate endorsement.
(3) The additional insurance provisions shall extend coverage for both ongoing and
completed operations for the owners concurrent and sole negligence, to the fullest
extent allowed by law and not prohibited under Chapter 151, Texas Insurance Code.
(4) Architect shall provide proof of coverage of the required Insurance upon final
execution of this agreement and at any time upon Owner’s request. Proof of coverage
shall be provided via a certificate of insurance indicating the endorsement form name
and number and, as necessary, Architect/Engineer will provide a copy of the policy or
endorsement to Owner for review and approval.
(5) Architect/Engineer shall maintain CGL coverage for itself and each additional insured
for the duration of the project and maintain Completed Operations coverage for itself
and each additional insured for at least ten (10) years after completion of the work
completed under the terms of this agreement.
(6) Architect/Engineer waives all claims and causes of action against Owner and Parish,
their members, officers, directors and employees for any and all injuries suffered by
Architect/Engineer’s employees.
(7) The required business automobile liability insurance shall be written to cover all owned,
hired and non-owned automobiles arising out of the use thereof by or on behalf of the
Architect/Engineer and its employees. The policy shall include a waiver of subrogation
in favor of Owner and Parish, be endorsed to include Owner and Parish as an additional
insured to the fullest extent allowed by law and not prohibited under Chapter 151,
Texas Insurance Code, and shall state that such insurance is primary insurance as
respects any insurance carried by Owner and Parish.
D. Prior to the commencement of any work or service by Architect/Engineer under this
agreement, Architect/Engineer shall furnish Owner insurance certificates on standard
Accord form, along with evidence of the required endorsements, or evidence of coverage
signed by authorized representatives of the companies providing the required coverage.
Upon request and without expense, Architect/Engineer shall furnish Owner and Parish
with certified copies of the required insurance policies signed by authorized
representatives of the insurance companies providing the coverage.
E. All policies providing coverage shall contain provisions that no cancellation, non-renewal
or material changes in the policy shall become effective, except on thirty (30) days
written notice to Owner.
F. The lack of insurance coverage does not reduce or limit Architect/Engineers’
responsibility to indemnify Owner and Parish as set forth in this agreement.
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G. Any and all deductibles and premiums associated with the required insurance shall be
assumed by, for the account of, and at the sole risk of Architect/Engineer.
12. Indemnification.
A. For the purposes of Paragraph 12:
(1) “Indemnified Parties” means Owner, Parish, and their sureties, members, clergy,
officers, agents, representatives, employees, volunteers, successors and assigns;
(2) “Liability” means any claims, suits, liabilities, demands, damages, losses, injuries,
causes of action, liens, foreclosures, judgments, awards, attorney’s fees, costs,
expenses of suit including expert fees in defending or settling a claimed liability,
attorney’s fees to enforce or collect on this indemnity, government imposed fine or
penalty, and any other expenses of any kind or character; and
(3) “Architect/Engineer’s Representatives” means Architect/Engineer, its agents,
employees, material supplies, and subcontractors of any tier, and any other person
directly or indirectly employed by them for whose acts they may be responsible.
B. INDEMNITY.
(1) ARCHITECT/ENGINEER SHALL PROTECT, INDEMNIFY, DEFEND, AND
HOLD HARMLESS THE IDEMNIFIED PARTIES AND ALL PROPERTY
COMPRISING OR RELATED TO THE PROJECT OR SERVICES
PERFORMED PURSUANT TO THIS AGREEMENT FROM AND AGAINST
ANY AND ALL LIABLITY OR ALLEGED LIABILITY ARISING IN ANY
MANNER, DIRECTLY OR INDIRECTLY, OUT OF OR IN CONNECTION
WITH, OR IN THE COURSE OF OR INCIDENTAL TO, ANY OF
ARCHITECT/ENGINEER’S
OR
ARCHITECT/ENGINEER’S
REPRESENTATIVES’ WORK OR OPERATIONS UNDER THIS
AGREEMENT (THE “GENERAL INDMENITY OBLIGATION”).
(2) WITHOUT LIMITING THE GENERAL INDEMNITY OBLIGATION, AND
NOTWITHSTANDING ANY PROVISION IN THIS PARAGRAPH 12,
ARCHITECT/ENGINEER SHALL, IN ADDITION, HAVE THE SPECIFIC
OBLIGATION TO INDEMNIFY, DEFEND, PROTECT, AND HOLD
HARMLESS THE INDEMNIFIED PARTIES AGAINST LIABILITY OR
ALLEGED LIABILITY:
(a) FOR FAILING TO PAY PROMPTLY, WHEN DUE, ALL LABOR,
SERVICES, MATERIAL, EXPENSES, ITEMS FURNISHED OR
FABRICATED, EQUIPMENT, AND SUPPLIES USED IN CONNECTION
WITH THE PROJECT OR SERVICES PROVIDED UNDER THIS
AGREEMENT;
(b) FOR FAILING TO COMPLY WITH THIS AGREEMENT IN ANY
OTHER WAY PROVIDED THAT ANY RESULTING LIABITY WHICH,
IF ESTABLISHED, COULD CREATE A LIABILITY TO ANY
INDEMNIFIED PARTY OR RESULT IN A LIEN ON THE PROPERTY
ON WHICH THE PROJECT IS LOCATED OR ANY OTHER PROPERTY
OWNED BY OWNER; AND
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(c) AGAINST THE INDEMNIFIED PARTIES BY OR IN THE NAME OF
ANY
EMPLOYEE
OF
ARCHITECT/ENGINEER
OR
ARCHITECT/ENGINEER’S
REPRESENTATIVES
FOR
BODILY
INJURY OR DEATH OF THE EMPLOYEE TO INCLUDE ANY
LIABILITY OR ALLEGED LIABILITY CAUSED, IN WHOLE OR PART,
BY THE EXPRESS NEGLIGENCE OF THE INDEMNIFIED PARTIES.
(3) ARCHITECT/ENGINEER SHALL PROMPTLY SATISFY, DISCHARGE OR
OTHERWISE REMOVE ANY LIABILITY OR ALLEGED LIABILITY BY
PROMPTLY
EXECUTING
A
BOND
IF
NECESSARY.
IF
ARCHITECT/ENGINEER
HAS
BEEN
PAID
IN
FULL,
ARCHITECT/ENGINEER OR ITS SURETY SHALL PROMPTLY PAY THE
INDEMNIFIED PARTIES ALL COSTS AND EXPENSES INCURRED BY
THE INDEMINFIED PARTIES IN REMOVING OR DISCHARGING SUCH
LIABILITY OR ALLEGED LAIBILITY.
(4) THE
GENERAL
INDEMNITY
OBLIGATION
SHALL
APPLY
REGARDLESS OF CAUSE OR ANY ALLEGATION OF CONCURRENT OR
CONTRIBUTING FAULT OR NEGLIGENCE OF ANY INDEMNIFIED
PARTY OR ANY BREACH OF THE CONTRACT, BUT IT SHALL NOT
APPLY TO LIABILITY CAUSED BY THE SOLE NEGLIGENCE OF THE
INDEMINFIED PARTIES, EXCEPT AS PROVIDED IN PARAGRAPH
12B(2)(c).
(5) ARCHITECT/ENGINEER ASSUMES ALL RISK OF DAMAGE OR INJURY
TO ARCHITECT/ENGINEER’S OWN PROPERTY OR TO THE PROPERTY
OF ARCHITECT/ENGINEER’S REPRESENTATIVES FROM ANY CAUSE
WHATSOEVER, AND FURTHER AGREES TO FULLY PROTECT,
INDEMNIFY, DEFEND AND HOLD HARMLESS THE INDEMNIFIED
PARTIES, FROM AND AGAINST ANY AND ALL LIABILITY OR
ALLEGED LIABILITY THAT MAY ARISE FROM DAMAGE OR INJURY
TO ARCHITECT/ENGINEER’S OWN PROPERTY OR TO THE PROPERTY
OF ARCHITECT/ENGINEER’S REPRESENTATIVES. THIS PROVISION IS
INTENDED TO PROTECT, DEFEND, INDEMNIFY AND HOLD AN
INDEMNIFIED PARTY HARMLESS FROM LIABILITY OR ALLEGED
LIABILITY CAUSED BY ANY PERSON FOR ANY CAUSE, INCLUDING
BUT NOT LIMITED TO THE NEGLIGENCE OF AN INDEMNIFIED
PARTY.
(6) THE GENERAL INDMENIFICATION OBLIGATION SHALL NOT BE
LIMITED BY ANY LIMITATION ON THE AMOUNT OR TYPE OF
DAMAGES, COMPENSATION, OR BENEFITS PAYABLE BY OR FOR
ARCHITECT/ENGINEER
OR
ARCHITECT/ENGINEER’S
REPRESENTATIVES
UNDER
WORKERS’
OR
WORKMAN’S
COMPENSATION ACTS, DISIBILITY BENEFIT ACTS, OR OTHER
EMPLOYEE BENEFIT ACTS, AND SHALL EXTEND TO AND INCLUDE
LIABILITY OR ALLEGED LIABILITY BY OR IN THE NAME OF ANY
EMPLOYEE OF ARCHITECT/ENGINEER OR ARCHITECT/ENGINEER’S
REPRESENTATIVES.
(7) ALL INDEMNITY OBLIGATIONS CONTAINED IN THIS AGREEMENT
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SHALL SURVIVE THE COMPLETION OR TERMINATION OF THIS
AGREEMENT.
(8) THE INDEMNIFIED PARTIES SHALL BE ENTITLED TO CONTROL THE
DEFENSE OF ANY LIABIILITY AND SHALL HAVE THE EXCLUSIVE
RIGHT TO CHOOSE THEIR OWN COUNSEL FOR THIS PURPOSE.
C. REFORMATION UNDER CERTAIN CIRCUMSTANCES.
(1) IF CHAPTER 151 OF THE TEXAS INSURANCE CODE, CURRENTLY OR
AS MAY BE AMENDED, IS DEEMED OR ADJUDICATED BY A COURT
OR AN ARBITRATOR TO BE APPLICABLE TO THIS AGREEMENT, THE
INDEMNITY PROVISIONS SHALL BE REFORMED TO COMPLY WITH
APPLICABLE LAW.
UNDER NO CIRCUMSTANCE SHALL THE
APPLICABILITY OF CHAPTER 151 OF THE TEXAS INSURANCE CODE
VOID, INVALIDATE, OR OTHERWISE ACT AS A COMPLETE BAR OR
DEFENSE TO THE INDEMNITIES CREATED UNDER THIS AGREEMENT.
(2) IF CHAPTER 151 OF THE TEXAS INSURANCE CODE APPLIES TO THIS
AGREEMENT,
ARCHITECT/ENGINEER’S
OBLIGATION
TO
INDEMNIFY, HOLD HARMLESS, AND DEFEND THE INDEMNIFIED
PARTIES SHALL BE REFORMED SO THAT THE INDEMNITY
OBLIGATIONS APPLY ONLY TO THE EXTENT THAT THE LIABILITY
OR ALLEGED LIABILITY IS CAUSED IN WHOLE OR IN PART BY A
NEGLIGENT ACT OR OMISSION OR FAULT OF ARCHITECT/ENGINEER
OR ARCHITECT/ENGINEER’S REPRESENTATIVES.
13. Governing Law, Venue, and Waiver of Jury.
A. Texas law shall govern the validity, interpretation, and enforcement of this agreement.
B. This agreement is entered into and performed in Travis County, Texas, without regard to
where actual work is performed. The venue for any litigation with respect to this
agreement shall be in Travis County, Texas.
C. Owner and Architect/Engineer agree to submit any dispute concerning this
agreement to the District Courts of Travis County, Texas for a determination by
judge alone. The Owner and Architect/Engineer expressly waive their right to a trial
by jury.
14. Owner’s Policies. Architect/Engineer shall follow Owner’s policies. Architect/Engineer
acknowledges receipt of the following Owner’s policies:
(i) Diocese of Austin General Procedural Requirements of the Parish for Construction;
(ii) Diocese of Austin Owner’s Instructions to the Architect/Engineer; and
(iii) Diocese of Austin Architect/Engineer Design Requirements.
15. Notices. Any notice required under this agreement shall be in writing and shall be effective
when sent to the party’s address or email specified in Paragraph 1.
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16. Survival of Representation and Warranties. All limitations and provisions of liability,
indemnifications, warranties, and representations contained in this agreement shall survive the
completion of this agreement and shall remain in full force and effect.
17. Hazardous Materials. Architect/Engineer services do not include any services related to the
presence of hazardous or toxic materials. If a party encounters hazardous or toxic materials or
if Architect/Engineer becomes aware that hazardous or toxic materials may be present on or
about the Project, Architect/Engineer may suspend performance of Architect/Engineer’s
services under this agreement until Owner and Architect/Engineer agree that
Architect/Engineer will perform Additional Services addressing the hazardous or toxic
materials in accordance with this agreement, or Owner retains the appropriate consultants or
contractors to identify and abate or remove the hazardous or toxic materials.
18. Entire Agreement. This agreement constitutes the entire agreement between the parties and
may not be changed except by written agreement signed by Owner and Architect/Engineer.. A
party’s oral statements or representations which are not expressed in this agreement are not
binding on the parties.
19. Architect/Engineer’s Agreements with Consultants.
A. If Architect/Engineer retains any subcontractors, consultants, or other experts to assist
Architect/Engineer in performance of this Agreement, Architect/Engineer shall enter into
written contracts with the subcontractors, consultants, or experts and provide Owner a copy
of each written contract.
B. In the contracts with a subcontractor, consultant, or expert, Architect/Engineer shall include
provisions that subcontractor, consultant, or expert:
(1) shall be bound by the waiver of Economic Loss Rule in Paragraph 9;
(2) waive any ownership or copyright interest in master plan and schematic design;
(3) maintain insurance in the same amount and in the same policies required of
Architect/Engineer under Paragraph 11;
(4) agree to indemnify Owner and Parish to the same extent Architect/Engineer
indemnified Owner and Parish under Paragraph 12;
(5) acknowledge that the Owner and Parish are the intended beneficiaries of their work;
(6) acknowledge that Owner and Parish make no representations regarding the accuracy,
correctness or sufficiency of any survey, schematic design, master plan, plans or
specification related to the Project;
(7) shall perform an independent evaluation of any survey, schematic design, master
plan, plans or specifications to determine their accuracy, correctness and sufficiency;
(8) acknowledge that Owner and Parish will rely on any work they perform for
Architect/Engineer under their agreement and that Owner and Parish are third party
beneficiaries of their agreement with Architect/Engineer;
(9) acknowledge and agree that they, alone, control their work, methods, techniques,
sequences, and procedures, and, therefore, are responsible for coordinating their
work; and
(10) acknowledge and agree that they are responsible for all acts, omissions, and
negligence of their employees, subcontractors, and agents and the employees of other
persons or entities performing portions of the work for them.
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20. Severability. If any clause in this agreement is found to be invalid or unenforceable by a court
of law, the remainder of this agreement shall be not affected and all other provisions of this
agreement shall remain valid and enforceable.
21. TBAE Notice. The Texas Board of Architectural Examiners, 8213 Shoal Creek Blvd., Steck
Executive Plaza, Suite 107, Austin, Texas 78758, Phone (512) 458-1363, has jurisdiction
over individuals licensed under The Architect’s Registration Law, Article 2492, VCTS.
22. Third Party Beneficiary. The Parties agree that the Parish is a Third Party Beneficiary to
this Agreement.
OWNER:
ARCHITECT/ENGINEER:
The Most Reverend Joe S. Vasquez,
Bishop of the Catholic Diocese of Austin
and His Successors in Office
____________________________________
By:
By:
Name: Most Reverend Daniel E. Garcia
Name:
Title: Auxiliary Bishop, Vicar General,
and Attorney-in-Fact for the
Most Reverend Joe S. Vásquez
Title:
Date:
Date:
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ATTACHMENT A
STRUCTURAL ENGINEERING CONSULTANT:
Name
Address
Telephone No.
Type of Business Organization
Extent of Participation in Each Phase of Service:
CIVIL ENGINEERING CONSULTANT:
Name
Address
Telephone No.
Type of Business Organization
Extent of Participation in Each Phase of Service:
MECHANICAL ENGINEERING CONSULTANT:
Name
Address
Telephone No.
Page 16 of 18
Rev. 3-3-15
Type of Business Organization
Extent of Participation in Each Phase of Service:
ELECTRICAL ENGINEERING CONSULTANT:
Name
Address
Telephone No.
Type of Business Organization
Extent of Participation in Each Phase of Service:
OTHER CONSULTANTS:
Name
Address
Telephone No.
Type of Business Organization
Extent of Participation in Each Phase of Service:
Page 17 of 18
Rev. 3-3-15
OTHER CONSULTANTS:
Name
Address
Telephone No.
Type of Business Organization
Extent of Participation in Each Phase of Service:
Page 18 of 18