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HomeMy WebLinkAbout1998-241ORDINANCE NO L AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH DUNKIN, SIMS, STOFFELS, INC FOR SERVICES RELATING TO THE PLANNING, DESIGN AND ENGINEERING SERVICES FOR EVERS PARK BASEBALL FIELDS, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE (PURCHASE ORDER # 86621 — DUNKIN, SIMS, STOFFELS, INC IN THE AMOUNT OF $49,500 00) THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the City Manager is hereby authorized to execute a Professional Services Agreement with Dunkin, Sims, Stoffels, Inc for the planning, design and engineering services for Evers Park Baseball Fields, a copy of which Agreement is attached hereto and incorporated herein by reference SECTION II That the expenditure of funds as provided in the attached agreement is hereby authorized SECTION III That this ordinance shall become effective immediately upon its passage and approval PASSED AND APPROVED this the IV,- ' day of 1998 JA LLER, MAYOR ATTEST JENNIFER WALTERS, CITY SECRETARY f BY APP VED AS TO LEGAL FORM HERIERT L PROUTY, CITY ATTO,RNEY BY / PC 86621 PROFESSIONAL SERVICES AGREEMENT ORDINANCE AGREEMENT FOR ARCHITECTURAL SERVICES Tlus Agreement made as of the 18 day of August 1 1998 between the City of Denton, Texas, hereinafter referred to as "Owner", and Donlan Sims Stoffels, Inc hereinafter referred to as "Architect" for the following Project Evers Park Improvements The Owner and Architect agree as set forth below ARTICLE 1 ARCHITECT'S RESPONSIBILITIES 11 ARCHITECT'S SERVICES 1.1,1 The Architect's services consist of those services performed by the Architect, Archtect's employees and Arcltect's consultants as enumerated in Articles 2 and 3 of this Agreement and any other services included in Article 11 1.1.2 The Architect's services shall be performed as expeditiously as is consistent with the normal degree of professional stall and care and the orderly progress of the Work Upon request of the Owner, the Architect shall submit for the Owner's approval a schedule for the performance of the Archtect's services which may be adjusted as the Project proceeds, and shall include allowances for penods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project Tune limits established by this schedule and approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner, and any adjustments to thus schedule shall be m atually acceptable to both parties 11.3 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 1041 ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES 21 DEFINITION 2.11 The Architect's Basic Services consist of those described in Paragraphs 2 2 through 2 6 and any other services identified in Article 11 as part of Basic Services, and include without hnutauon normal stmctural, mechanical and electrical engineering services and arty other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Paragraph 2 4 2.2 SCHEMATIC DESIGN PHASE 2.2,1 The Architect, in consultation with the Owner, shall develop a written program for the Project to ascertain Owner's needs and to establish the requirements for the Project 2.2.2 The Architect shall provide a preliminary evaluation of the Owner's program, consmicuon schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Subparagraph 5 2 1 2.2 3 The Architect shall review with the Owner alternative approaches to design and construction of the Project 2.2.4 Based on the mutually agreed -upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations 2.2.5 The Architect shall submit to the Owner a preliminary detailed estimate of Constriction Cost based on current area, volume or other unit costs and which indicates the cost of each category of work involved in constructing the Project and establishes an elapsed trine factor for the period of time from the commencement to the completion of construction. 23 DESIGN DEVELOPMENT PHASE 231 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction budget, the Architect shall prepare for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations Owner's approval of the documents will be based on the architect's professional opinion that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project 23 2 The Architect shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost in a further Detailed Statement as described in Paragraph 2 2 5 2.4 CONSTRUCTION DOCUMENTS PHASE 2A.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction budget authorized by the Owner, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail requirements for the construction of the Project, which shall comply with all applicable laws, statutes, ordinances, codes and regulations Owner's approval of the documents will be based on the architect's professional opinion that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the Project 2A.2 The Architect shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor 2 43 The Architect shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions 2 4A The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project 2 5 BIDDING 2 51 The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in obtaining bids and assist in awarding and preparing contracts for construction 2 5.2 If the lowest bid for the construction of the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Architect, then the Architect, at its sole cost and expense, will revise the Construction Documents as may be required by the City to reduce or modify the quantity or quality of the work so that the total construction cost of the Project will not exceed the total construction cost set forth in the approved Detailed Statement of Probable Construction Costs 26 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONTRACT 2 61 The Architects responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subparagraph 9.3 2 2 6 2 The Architect shall provide detailed admuustiation of the Contract for Construction as set forth below and in the edition of AIA document A201, General Conditions of the Contract for Construction, current as of the date of tlus Agreement, unless otherwise provided in this Agreement 2.63 Construction Phase duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect PAGE 264 The Architect shall be a representative of and shall advise and consult with the Owner (1) during construction, and (2) at the Owner's direction from time to time during the correction, or warranty period described in the Contract for Construction The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement unless otherwise modified by written instrument 2 6 $ The Architect shall observe the construction site, regardless of whether construction is in progress, to become faimhar with the progress and quality of the Work completed and to determine if the Work is being perforated in a manner indicating that the Work when completed will be in accordance with the Contract Documents Architect shall provide Owner a written report subsequent to each on -site visit On the basis of on -site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall exercise the utmost care and diligence in discovering and promptly reporting to the Owner any defects or deficiencies in the work of Contractor or any subcontractors The Arclutect represents that he will follow the highest professional standards in performing all services under this Agreement The Architect shall promptly correct any defective designs or specifications famished by the Architect at no cost to the Owner The Owner's approval, acceptance, use of or payment for all or any part of the Arclutect's services hereunder or of the Project itself shall in no way alter the Architect's obligations or the Owner's rights hereunder 2 6 6 The Architect shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work The Architect shall not be responsible for the Contractor's schedules or failure to carry out the Work in accordance with the Contract Documents except msofar as such failure may result from Arclutect's negligent acts or omissions The Architect shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work 2 6 7 The Architect shall at all tunes have access to the Work wherever it is in preparation or progress 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Architect Communications by and with the Arclutect's consultants shall be through the Arclutect. 2 6 9 Based on the Architect's observations at the site of the work and evaluations of the Contractor's Applications for Payment, the Architect shall review and certify the amounts due the Contractor 2 610 The Arclutect's certification for payment shall constitute a representation to the Owner, based on the Arclutect's observations at the site as provided in Subparagraph 2 6 5 and on the data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that the quality of the Work is in accordance with the Contract Documents The foregoing representations are subject to minor deviations from the con- tract Documents correctable prior to completion and to specific qualifications expressed by the Architect The issuance of a Certificate for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified However, the issuance of a Certificate for Payment shall not be a representation that the Architect has (1) reviewed construction means, methods, techmques, sequences or procedures, or (2) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum 2 611 The Architect shall have the responsibility and authority to reject Work which does not conform to the Contract Documents Whenever the Arclutect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed However, neither tits authority of the Arclutect nor a decision made in good faith either to exercise or not exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons perforating portions of the Work PAGE 2 612 The Architect shall review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data and Samples for the purpose of (1) determining compliance with applicable laws, statutes, ordinances and codes, and (2) determining whether or not the Work, when completed, will be in compliance with the requirements of the Contract Documents The Architect shall act with such reasonable promptness to cause no delay in the Work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the Arclutect's professional judgment to permit adequate review Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities or for substantiating instructions for installation or performance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contractor to the extent required by the Contract Documents The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of construction means, methods, techniques, sequences or procedures The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect shall be entitled to rely upon such certification to establish that the materials, systems or equipment will meet the performance criteria required by the Contract Documents 2 613 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Subparagraphs 3 1 1 and 3 3 3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Tune which are not mconsistent with the intent of the Contract Documents 2.614 On behalf of the Owner, the Architect shall conduct inspections to determine the dates of Substantial Completion and Final Completion, and shall issue Certificates of Substantial and Final Completion The Architect will receive and review written guarantees and related documents required by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents 2 615 The Architect shall interpret and provide recommendations on matters concerning performance of the Owner and, Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor The Architect's response to such requests shall be made with reasonable promptness and within any time lmuts agreed upon 2.6.16 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in writing or in the form of drawings When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith m accordance with all the provisions of this Agreement and in the absence of negligence 2.6.17 The Architect shall render wntten decisions within a reasonable time on all claims, disputes or other matters in question between the Owner and Contractor relating to the execution or progress of the Work as provided in the Contract Documents 2.6.18 The Architect (1) shall render services under the Agreement in accordance with the normal professional standards prevailing in the Dallas -Fort Worth metroplex area, (2) will reimburse the Owner for all damages caused by the defective designs the Architect prepares, and (3) by acknowledging payment by the Owner of any fees due, shall not be released from any rights the Owner may have under the Agreement or donnish any of the Architect's obligations thereunder 2.6.19 The Architect shall provide the Owner with set(s) of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase PAGE ARTICLE 3 ADDITIONAL SERVICES 31GENERAL 31.1 The services described in ttus Article 3 are not included in Basic Services unless so identified in Article 11, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services The services described under Paragraphs 3 2 and 3 4 shall only be provided if authorized or confirmed in writing by the Owner If services described under Contingent Additional Services in Paragraph 3 3 are required due to circumstances beyond the Architect's control, the Architect shall notify the Owner prior to commencmg such services If the Owner deems that such services described under Paragraph 3 3 are not required, the Owner shall give prompt written notice to the Architect If the Owner indicates in writing that all or part of such Contingent Additional Services are not required, the Architect shall have no obligation to provide those services Owner will be responsible for compensating the Architect for Contingent Additional Services only if they are not required due to the negligence or fault of Architect 3 2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3 2.1 If more extensive representation at the site than is described in Subparagraph 2 6 5 is required, the Architect shall provide one or more Project Representatives to assist in carrying out such additional on -site responsrbdthes 3 2.2 Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compensated therefor as agreed by the Owner and Architect The duties, responsibilities and limitations of authority of Project Representatives shall be as described in the edition of AIA Document B352 current as of the date of this Agreement, unless otherwise agreed 33 CONTINGENT ADDITIONAL SERVICES 331 Making material revisions in Drawings, Specifications or other documents when such revisions are inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget, required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or due to changes required as a result of the Owner's failure to render decision in a timely manner 33.2 Providing services required because of significant changes in the Project including, but not hmited to, size, quality, complexity, the Owner's schedule, or the method of bidding and contracting for construction, except for services required under Subparagraph 2 5 2 33.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives 33.4 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and famishing services required in connection with the replacement of such Work 334 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 33.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work PAGE 33 7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Architect is party thereto 33 S Preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase 3A OPTIONAL ADDITIONAL SERVICES 3 41 Providing financial feasibility or other special studies 3 4 2 Providing planning surveys, site evaluations or comparative studies of prospective sites 3A3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project 3 4 4 Providing services relative to future facilines, systems and equipment 3 4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof 3 4.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner 3A 7 Providing coordination of construction performed by separate contractors or by the Owner's own forces and coordination of services required in connection with construction performed and equipment supplied by the Owner 3 4 S Providing services in connection with the work of a construction manager or separate consultants retained by the Owner 3 4.9 Providing detailed quantity surveys or inventories of material, equipment and labor 3 4.10 Providing analyses of owning and operating costs 3A.11 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities 3 4.12 Providing assistance in the utilization of equipment or systems such as testing, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance and consultation dinuig operation 3A.13 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, funushings and related equipment 3 4.14 Providing services other than as provided in Section 2 6 4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction 3A.15 Providing services of consultants for other than architectural, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services 3 4.16 Providing any other services not otherwise included in this Agreement or not customanly famished in accordance with generally accepted architectural practice 3 4.17 Preparing a set of reproducible record drawings showing significant changes in the Work made during construction based on marked -up prints, drawings and other data furnished by the Contractor to the Architect (Thus is for drawings prepared in addition to those specified in Section 2 6 19 ) PAGE ARTICLE 4 OWNER'S RESPONSIBILITIES 41 The Owner shall consult with the Architect regarding requirements for the Project, including (1) the Owner's objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expendability, special equipment, systems and site requirements, as more specifically described in Paragraph 2 2 1 4 2 The Owner shall establish and update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs 43 If requested by the Architect, the Owner shall fiunish evidence that financial arrangements have been made to fulfill the Owner's obligations under this Agreement. 4 4 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project The Owner or such authorized representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services 4.5 The Owner shall fimush surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site The surveys and legal information shall include, as ap- plicable, grades and hues of streets, alleys, pavements and adjoining property and structures, adjacent drainage, rights - of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site, locations, dimensions and necessary data pertaining to existing buildings, other unprovements and trees, and information concerning available utility services and Imes, both public and private, above and below grade, including inverts and depths All' the information on the survey shall be referenced to a project benchmark 4.6 The Owner shall fiumsh the services of geotechmcal engineers when such services are requested by the Architect. Such services may include but are not limited to test borings, test pits, detemunations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistively tests, including necessary operations for anticipating sub -soil conditions, with reports and appropriate professional recommendations 4 61 The Owner shall fiumsh the services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Architect and are not retained by the Architect as part of its Basic Services 4 7 The Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous materials, and other laboratory and environmental tests, inspections and reports required by law or the Contract Documents 4 8 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including auditing services the Owner may require to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid by or on behalf of the Owner 4 9 The services, information, surveys and reports required by Paragraphs 4 5 through 4 8 shall be famished at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof in the absence of any negligence on the part of the Architect 410 The Owner shall give prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents 411 Architect shall propose language for certificates or certifications to be requested of the Architect or Arclutect's consultants and shall submit such to the Owner for review and approval at least fourteen (14) days prior to execution The Owner agrees not to request certifications that would require knowledge or services beyond the scope of this Agreement PAGE ARTICLE 5 CONSTRUCTION COST 51 DEFINITION 51 1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Architect 51.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Contractor's overhead and profit In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work during construction 51.3 Construction Cost does not include the compensation of the Architect and Archtects consultants, the costs of the land, rights -of -way, financing or other costs which are the responsibility of the Owner as provided in Article 4 5 2 RESPONSIBILITY FOR CONSTRUCTION COST 5 21 Evaluations of the Owner's Project budget, preliminary estimates of Construction Cost and detailed estimates of Construction Cost prepared by the Architect represent the Architects best judgment as a design professional familiar with the construction industry It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding or market conditions Accordingly, the Architect cannot and does not warrant or represent that bids will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepared or agreed to by the Architect 5 2.2 No fixed lmut of Construction Cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in writing and signed by the parties thereto If such a fixed limit has been established, the Architect shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construc- tion are to be included in the Contract Documents, to make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate bids to adjust the Construction Cost to the fixed lumt Fixed limits, if any, shall be increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for Construction 5 2.3 If the Bidding Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be adjusted to reflect changes in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 61 The Drawings, Specifications and other documents prepared by the Arcltect for this Project are instruments of the Archtteef a service for use solely with respect to this Project and, unless otherwise provided, the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright The Owner shall be pemutted to retain copies, including reproducible copies, of the Architects Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project The Architects Drawings, Specifications or other documents shall not be used by the Owner or others on other projects for additions to this Project or for completion of this Project by others, unless this Agreement is terminated because Architect is in default of thus Agreement, at which tune the documents become the property of the City of Denton 6 2 Subrmssion or distribution of documents to meet official regulatory requirements or for sumlar purposes in connection with the Project is not to be construed as publication in derogation of the Arclutect's reserved rights PAGE ARTICLE 7 TERNIINATION, SUSPENSION OR ABANDONMENT 71 Architect may terminate this Agreement upon not less than thirty days written nonce should the Owner fail substantially to perform in accordance with the terns of this Agreement through no fault of the Architect Owner may terminate this Agreement or any phase thereof upon thirty (30) days prior written nonce to the Architect with the understanding that immediately upon receipt of such nonce, all work and labor being performed under the Agreement shall cease immediately Before the end of the thirty (30) day period, Architect shall invoice the Owner for all work it performed prior to the receipt of such nonce No amount shall be due for lost or anticipated profits All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and shall be promptly delivered to the Owner in a reasonably organized form Should Owner subsequently contract with a new architect for continuation of services on the Project, Architect shall cooperate in providing information. 7.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated for services performed prior to nonce of such suspension When the Project is resumed, the Architects compensation shall be equitably adjusted to provide for expenses incurred in the interruption and resumption of the Arclutects services 73 This Agreement may be terminated by the Owner upon not less than seven days written nonce to the Architect in the event that the Project is permanently abandoned If the Project is abandoned by the Owner for more than 90 consecutive days, the Architect or the Owner may terminate this Agreement by giving written nonce 7A Failure of the Owner to make payments to the Arcltect in accordance with this Agreement shall be considered substantial nonperformance and cause for termination 7.5 If the Owner fails to make payment to Architect within flurry (30) days of receipt of a statement for services properly performed, the Architect may, upon seven days written nonce to the Owner, suspend performance of services under this Agreement Unless Architect receives payment in full within seven (7) days of the date of the nonce, the suspension shall take effect without further notice In the event of a suspension of services under thus section, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services 7 6 In the event of termuianon not the fault of the Architect, the Architect shall be compensated for services properly performed prior to temunanon ARTICLE 8 MISCELLANEOUS PROVISIONS 81 This Agreement shall be governed by the laws of the State of Texas 8 2 Terms in this Agreement shall have the same meaning as those in AIA Document A201, General Conditions of the Contract for Construction, current as of the date of thus Agreement 83 The Owner and Archutect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement Neither Owner nor Architect shall assign this Agreement without the written consent of the other 8A This Agreement represents the entire and integrated agreement between the Owner and Architect and supersedes all prior negotiations, representations or agreements, either written or oral This Agreement maybe amended only by written instrument signed by both Owner and Architect 8 5 Nothing contained in tlus Agreement shall create a contractual relationship with or a cause of action in favor of a thud party against either the Owner or Architect PAGE 8 6 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no respon- sibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials in any fort at the Project site, including but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic substances, provided, however, Architect shall have the responsibility to and shall report to the Owner the location of any hazardous material that an architect of similar skill and expertise should have noticed 8 7 Upon receipt of prior written approval of Owner, the Architect shall have the tight to include representations of the design of the Project, including photographs of the exterior and interior, among the Architect's promotional and professional materials The Architects materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary The Owner shall provide professional credit for the Architect on the construction sign and in the promotional materials for the Project ARTICLE 9 PAYMENTS TO THE ARCHITECT 91 DIRECT PERSONNEL EXPENSE 91.1 Direct Personnel Expense is defined as the direct salaries of the Arclutect's personnel engaged on the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits 9.2 REEKBURSABLE EXPENSES 9 2.1 Reunbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and Archtects employees and consultants in the interest of the Project, as identified in the following Clauses 9 21 1 Expense of transportation in connection with the Project, expenses in connection with authorized out-of-town travel, long-distance communications, and fees paid for securing approval of authorities having jurisdiction over the Project 9.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subparagraph 2 6 19), postage and handling of Drawings, Specifications and other documents Project 9.2.13 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates 9 214 Expense of renderings, models and mock-ups requested by the Owner 9.2 1S Expense of computer -aided design and drafting equipment time when used in connection with the 93 PAYMENTS ON ACCOUNT OF BASIC SERVICES 93.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to ser- vices performed within each phase of service, on the basis set forth in Subparagraph 10 2 2 93 2 If and to the extent that the time initially established in Subparagraph 10 4 1 of this Agreement is exceeded or extended through no fault of the Architect, compensation for any services rendered during the additional period of time shall be computed in the manner set forth in Subparagraph 10 2 2 93.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subparagraph 10 2 2 based on (1) PAGE 10 the lowest bona fide bid or (2) if no such bid or proposal is received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction Cost for such portions of the Project 9 4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 9A 1 Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Arclutect's statement of services rendered or expenses incurred 95 PAYMENTSWITHBELD 9 51 No deductions shall be made from the Architects compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the Work other than those for which the Architect is responsible 9 6 ARCHITECT'S ACCOUNTING RECORDS 9 6.1 Architect shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later ARTICLE 10 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows 101 BASIC COMPENSATION 101 1 FOR BASIC SERVICES, as described in Article 2, and any other services included in Article 11 as part of Basic Services, Basic Compensation shall be $49,500 00 1012 Progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable o Schematic Design Phase % o Design and Development Phase 40% o Construction Documents Phase 45% o Bidding Phase 5% o Construction Phase 10% o Total Basic Compensation 100% 10 2 COMPENSATION FOR ADDITIONAL SERVICES 10 2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 3 2, compensation shall be computed as follows Section 10 2 2 10 2 2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 3 and 11, other than (1) Additional Project Representation, as described in Paragraph 3 2, and (2) services included in Article 11 as part of Additional Services, but excluding services of consultants, compensation shall be computed as follows Principals $95 00 per hour Associates 65 00 per hour Technical Staff 45 00 per hour Clerical Staff 25 00 per hour PAGE 11 10.23 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical and electrical engineering services and those provided under Subparagraph 3 4 16 or identified in Article 11 as part of Additional Services, a multiple of 1 1 tmtes the amounts billed to the Arclutect for such services 10.3 REMMURSABLE EXPENSES 10.31 FOR REMURSABLE EXPENSES, as described in Paragraph 9 2, and any other items included in Article 11 as Reimbursable Expenses, a multiple of one (1) tunes the expenses incurred by the Architect, the Architects employees and consultants in the interest of the Project 10 4 ADDITIONAL PROVISIONS 10 4.1 IF THE BASIC SERVICES covered by this agreement have not been completed within one year of the date of execution hereof, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as provided in Subparagraphs 9 3 2 and 10 2 2 10 4 2 Payments are due and payable forty-five (45) days from the date of the Architect's invoice Amounts for services properly performed which remain unpaid sixty (60) days after the invoice date shall bear interest at the rate of one (1a/n) percent per month ARTICLE 11 OTHER CONDITIONS OR SERVICES 11.1 Architect shall maintain, at no expense to Owner, a professional liability (errors and omissions) insurance policy placed with a company rated at least B+1A by Bests Key Rating Guide, authorized to do business in Texas, in an amount not less than five hundred thousand dollars ($500,000) Such policy shall require the giving of written notice to Owner at least thirty days prior to cancellation, non -renewal or material modification of any policies, evidenced by return receipt of United States Certified Mail Architect shall furnish Owner with copies of said policies or certificates evidencing such coverage 11.2 Architect agrees to indemnify, hold harmless, and defend the City, at Architect's cost, its officers, agents, and employees from and against any and all claims or suits for injuries, damages, loss, or liability of whatever kind or character, ansing out of or in connection with the performance by the Architect of those services contemplated by tlus Agreement, based upon allegations of negligent acts or omissions of Architect, its officers, agents, employees, consul- tants and subcontractors This Agreement entered into as of the day and year first written above CITY OF DENTON, TEXAS, OWNER a— N: I1 APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY BY C / l ri 4 F \sheredid t L\Our Dwum to\Contacts\98\Duman ARCHtrECTURAL SERVICES 2 dw PAGE 12