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1998-241 ORDINANCE NO q ?-aq/ 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 Dunkln, Sims, Stoffels, Inc for the planning, design and englneenng services for Evers Park Baseball F~elds, 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 anthonzed SECTION III That this orchnanee shall become effective ~mmedlately upon ~ts passage and approval FASSED ' ROV Dthlsthe /F dayof ,1998 0 <2_2. ATTEST JENNIFER WALTERS, CITY SECRETARY AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTOff, NEY PC 86621 PROFESSIONAL SERVICES AGREEMENT ORDINANCE AGREEMENT 1*OR ARCHITECTURAL SERVICES This Agreement made as oftbe 18 dayof Auclust ,1998betweentheCttyofDenton, Texas, beremafler ~ferred to as "Owner", and Dunkm Sims Stoffels, Inc hereinafter referred to as "Architea" for the following ProJect Evers Park Improvements The Owner and Arehitea agree as set forthbelow ARCItlTIfiCT'S RESPONSIBILITIES 1 1 ARCHITI/;CT'S SERVICES 1.1,1 The A.wJutect's setmce~ consist of those serwces performed by the Amhitect, Arclutoct's employees and Architea's consultants as enun~mted m Amdes 2 and 3 of flus .a.g~ement and any other semces mchided m Amcle 11 1.1.1 The Ardutoct's services shall be performed as exp~hUoasly as is conmstent w~th [he normal degree of pmfessrenal shll and eare and the orderly progress of the Work Upon request of the Owner, the Architea shall subrmt for the Ownafs approval a scluxlule for the performance of the Arehitea's set,aces which may be adjusUxl as tho Pro. lea proceeds, and shall mehide allowan~s for periods of amc r~luu~l for the Ownafs review and for approval of submmsaons by authorities havmg jurisdiction over the ProJeCt Time lmuts estabhsbed by this schedule and approved by tho Owner shall not, ~ for reasonable eau.se, be exhaled by the Architect or Owner, and any adjustments to flus schedule shall be mutually acceptable to both parties 11.3 The scmees covered by flus Agreement ate subjea to the tune hnutaaons contained m Subparagraph 1041 ARTICLE 2 SCOPE OP ARCHITECT'S BASIC SERVICES 2.1 I~EIqNmON :L11 The Amhitea's Baac Senaees consist of those described m Paragraphs 22 through 26 and any other serwces ulenUfied m Atacle 11 as pan of Baac Sennces, and mclude vnthout hnutation normal ~, mechamcal and eloctneal engineering scrwcos and any other engineering semees necessary to produce a complete and aceamte set of Conslru~ton Documents, as descnbed by and reqtured m Paragraph 24 2~11 SCBEMATIC DESIGN PHASE ~.:l.1 The Ardu~t, m consultaUan w~th the Owner, shall develop a wn~n program for the Projea to ascertain Owner's needs and to astabhsh the reqmrements for the Pro. lea 2.~.2 The Amlutoct shall provide a prehmmary evaluation of the Owner's program, constrocUon schedule and consmgUon budget nxlmremnats, each m terms of tho other, subject to the lmutanons set forth m Subparagraph 521 2.ll 3 The Architect shall revrew with the Owner altemaUve approaches to design and constmcUon of the Pro. lea 2.2.4 Based on the mutually agreed-upon program, schedule and constmcUan budget reqmremen~, tbe Architect shall prepare, for approval by tbe Owner, Sd~mane Deagn Documents cons,sUng of drawmgs and other documents tlhistratmg the scale and relauonship of Projea components Tbe Scbemane Deagn shall contemplate compbanee vath all appheable laws, statules, ordmancea, codes and regulations 2,2.5 The Architect shall subnut to the Owner a prehnunaty detailed asllma~ of Construction Cost based on au'rent area, vulumo or other umt costs and which m~heates the cost of each eatogogy of work mvolved m constmcUng the Project and ostabhshea an ehpsed tune factor for the penod of tune from the commencement to the compl~on of constma~on~ 2.3 DESIGN DEVELOPMENT PHASE 2.3 1 Baaed on the appmved Scheroa~lc Design Documents and any adjustments authorized by tho Owner m the program, schedule or construction budget, tho Arcfutect shall prepare for appmval by the Owner, Design Development Documents consisting of drawings and other documents to I'm and describe the s~ze and character of the ProJect as to arctntectural, sm~ctural, mechamcal and electrical systems, materials and such other elements as may be appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulauons Owner's approval of the documents will bo based on the arclntect's professional opunon that the Documents and specfficat~ons will be sufficient and adequate to fulfill the pu~oses of the Project 2.3 2 The Axclutect shall admse the Owner of any adjustments to the prelunmmy estunate of Construction Cost m a further Detailed Statement as described m Paragraph 2 2 5 2.4 CONSTRUCTION DOCUMENTS PHASE 2.4.1 Based on the approved Design Development Documents and any further adJUStments m the scope or quality of tho ProJect or m the construction budget anthonzad by the Owner, the Arcintect shall prepare, for approval by the Owner, Cons~'uctton Documents consisting of Drawings and Specfficauons setting forth m detail requu:ements for the construction of the Project, winch shall comply with all apphcable laws, statutes, ordinances, codes and regulaUons Owner's approval of the documents will be baaed on the arcintect's professional opunun that the Documents and specifications will be sufficient and adequate to fulfill the purposes of the ProJect 2.4.12 Tho Arcintect shall assist the Owner m the preparation of the necessmy bidding mformat~on, bidding forms, tho ConchUous of the contract, and the form of Agreement between the Owner and contractor 2 4.3 The Arctutect shall advise tho Owner of any adJUStments to prewous prelmunary esUmates of Construction Cost re&cared by changes m requtremants or general market conthUoaa 2 4.4 Tho Arcintect shall aaslst the Owner m counect~on with the Owner's responsibility for filing documents reqmred for the approval of governmental anthont~es having jumchctton over the Project 2 5 BIDDING 2 5 1 The Arcintect, following the Owner's approval of the ConstmcUon Documents and of the latest prelmunary detailed esUmate of Consh-uct~en Cost, shall assist the Owner m obtaining bids and assist m awarding and prepanng comracts for construction 2 5.2 If the lowest bid for the constructmn of the Project exceeds the total cons~ructmn cost of thc Project as set forth m tho approved Detailed Statement of Prohablc ConsUuction Costs of the Project subrmtted by thc Arclntect, then the Architect, at its solo cost and expense, will revise the Construction Documents as may bc rcqun:ad 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 couslluctlon cost set forth m the approved Detailed Statement of Probable Construction Costs 2 6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2 6 1 The Arointecfs responsibility to provide Basic Services for the Construction Phase under this Agreement commences with tho award of the Contract for Construction and terminates at thc issuance to tho Owner of the final Certificate for Payment, unless extended under the tenm of Subparagraph 9-3 2 2 6 2 The Architect shall provide detailed adrnumtratton of the Contract for Construction as set forth below and m the edmon of AL4. document A201, Ganeral Cundmons of the Contract for Construction, current as of the date of fins Agreement, unless otharwise provided m tim Agreement 2,6.3 Construction Phase duties, respunsthfllt~es and lumtattons of anthonty of thc Arcintect shall not be restricted, mochfiad or extended without wntton agreement of the Owner and Arcintect PAGE 2 2 6 4 The Architect shall be a representative of and shall advise and consult with the Owner (1) dunng construction, and (2) at the Owner's d~cection from tune to tune during the correction, or warranty penod described m the Conffact for Consffuction The Architect shall have authority to act on behalf of the Owner only to the extent prowdad m this Agreement unless otherwise med~fied by wntren msmunant 2 6 5 The Architect shall observe the construction site, regardless of whether constxuctlon is m progress, to become fanuhar with the progress and quality of the Work completed and to determine if the Work is being performed m a manner indicating that the Work when completed will be m accordance with thc Contract Documents Architect shall provide Owner a written repo~ subsequent to each on-site visit On the hasps of on-site observations as an architect, the Architect shall keep the Owner informed of the progress and quahty of the Work, and shall exercise the uh~ust care and chhgence m (hscovermg and promptly repomn$ to the Owner any defects or deficiencies tn the work of Conti'actor or any subcontractors The Architect represents that he will follow the highest professional standards m performing all services under this Agreement The Architect shall promptly correct any defective deslgns or speclfications furmshed by the Architect at no cost to the Owner The Owner's approval, acceptance, use o£ or payment for all or any part of the Architect's services hereunder or of the Project itself shall m no way alter the Arclutect's obhgations or thc 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, meth~ds~tachmques~sequences~r~r~cedur~s~~rf~rsafetyprecauti~nsandprogramsmc~nnecti~nwithth~ Work. The Architect shall not be responsible for the Contractor's schedules or fmlure to carry out the Work tn accordance with the Contract Documents except Insofar as such failure may result from Architecfs neghgent acts or omissions The Architect shall not have control over or charge of acts or ormsslons of the Contractor, Subcontractors. or their agents or employees, or ofeny other persons pcrformm§ portions of the Work 2 6 ? The Architect shall at all trines have access to the Work wherever it is m preparation or progress 2.6.8 Except as may otherwise be provided m the Contract Documents or when direct commumcatious have been specially authorized, thc Owner and Contractor shall commumcate through the Architect Commumcations by and with the Architecffs consultants shall be through the Architect. 2 6 9 Based on the Archltecfs observations at the site of the work and evaluations of the Contractors Apphcations for Payment, the Architect shall review and cemfy the amounts due the Contractor 2 6 10 The Architect's certification for payment shall constitote a representation to the Owner, based on the Architect's observations at the site as provided m Subparagraph 2 6 5 and on the data compnsmg the Contractor% Application for Payment, that the Work has progressed to the point indicated and that the quality of the Work is m accordance w~th the Contract Documents The foregoing representations are subject to minor deviations from the con- tract Documents correctable prior to completion end to specific quahfieations expressed by the Architect The issuance of a Centlfxcate for Payment shall further constitute a representation that the Contractor is entitled to payment m 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, teclmlquas, 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 6 11 The Architect shall have the responslbthty and authority to reject Work which does not conform to the Contiact D0cuments Whenever the Architect considers it naccssary or advisable for implementation of the intent of the Contract Docnments. the Architect will have authority to require additional inspection or testing of the Work m accordance v, rtth the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed However. neither this authority of the Architect nor a decision made m good faith either to exercise or not exercise such authority shall give nsc to a duty or responsibility of the Architect to the Contractor. Subconffactors, material end equipment suppliers, their agents or employees or other persons performing pomous of the Work PAGE 2 6 12 The Architect shall review and approve or take other appmpnate actiun upon Contractor's subrmttals such as Shop D~awmgs, Product Data and Samples for the purpose of (1) determining comphance w~th applicable laws, statutes, ordinances and codes, and (2) determining whether or not the Work, when completed, will be m comphance with the requum-ucnts of the Contract Documents The Amhitect shall act wqth such reasonable pmmptness to cause no delay m tho Work or m the consRuctlon of the Owner or of separate contractors, while allowing sufficient rune m the Architect's profasslonal.]udgmant to permit adequate review Rewew of such subrmttals is not conducted for the purpose of deternmung the accuracy and completeness of other details such as chmanslons and quanttues or for substantiating instructions for installation or perfommnce of equipment or systems designed by the Contractor, all of which remain the responslhihty of the Contractor to the extent reqmred by the Contract Documents The Architect's review shall not constitute approval of safety precautions or, unless otherwise specdically stated by the Arclutect, of construction means, methods, techmques, sequences or procedures The Architect's approval of a specific item shall not mthcate approval of an assembly of which the item is a component When professional certification of performance chasactenstics of materials, systems or equipment ~s reqmred by the Contract Documents, the Arctutect shall be entitled to rely upon such cer~dication to estabhsh that the materials, systems or equipment will meet the performance cntena requu'ed by the Contract Documents 2 6 13 The Architect shall prepare Change Orders and Consm~ction Change D~rectives, w~th supporting documentation and data zf deemed necessary by the Architect as provided m Subparagraphs 3 1 1 and 3 3 3, for the Owner's approval and execution m accordance with the Contract Documents, and may authorize minor changes m the Work not revolving an ad, lusUnent m the Conirect Sum or an extenswn of the Contract Tnne which are not arconslstant wth the intent of the Contract Documents 2.6 14 On behalf of the Owner, the Architect shall conduct inspections to detemune the dates of Substantial Completion and Final Completion, and shall Issue Cemficates of Substantial and Final Completion The Architect volt receive and review written guarantees and related documents reqmred by the Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requu'ements of the Contract Documents 2 6 15 The Architect shall mteqoret and provide recommendations on matters concerning performance of the Owner and~ Con~ractor under the requirements of the Contract Documents on wntten request of either the Owner or Con~ractor The Architect's response to such requests shall be made with reasonable prompmess and within any tune lumts agreed upon 2.6.16 Interpretations and decisions of the Architect shall be consistent wth the intent of and reasonably referable from the Contract Documents and shall be m writing or m the form of drawings When malang such interpretations and untial decisions, the Architect shall endeavor to secure faithful perfonrmnce by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith m accordance voth all the pmvtslons of this Agreement and m the absence of neghgeuce 2.6.17 The Architect shall render written decisions within a reasonable ~.me on all clauns, chsputes or other matters m question between the Owner and Contractor relating to the execution or progress of the Work as provided m the Contract Documents 2.6.18 The Architect (1) shall render services under the Agreement m accordance with the normal professzonal standards prevailing m the Dallas-Fort Worth metroplex area, (2) wll ren'nburse 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 flrom any rights the Owner may have under the Agreement or dmumsh any of the Architect's obhgations thereunder 2.6.19 The Architect shall provide the Owner w~th __ set(s) of reproducible prints showing all slgnflicant changes to the Construction Documents during the Construction Phase PAGE 4 ARTICLE 3 ADDITIONAL SERVICES 3 1 GENERAL 3 1.1 The serwces descnbed m this ArUcle 3 are not included m Basic Services unless so ldenUfied m Amcle 11, and they shall be paid for by the Owner as provided m tbs Agreement, m adthUon to the compensaUon for Basic Services The services dascnhed under Parairaphs 3 2 and 3 4 shall only be provided fi' authorized or confLrmed m wntmg by the Owner If services descnhed under Contingent Adchtioual Services m Paragraph 3 3 are required due to circumstances beyond the Architeet~s control, the Architect shall notify the Owner prior to commencing 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 Arctutect If the Owner mdlcatas m wntmg that all or part of such Contingent Additional Services are not required, the Arelutact shall have no obhgation to pwwde those services Owner will be responsible for compensating the Amhitect for Contingent Addmonal Services only ffthey are not reqmred due to the negh§ence or fault of Architect 3 2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 3 2.1 If more extensive representation at the site than is described m Subparagraph 2 iS 5 ~s reqmred, the Architect shall provide one or more Project Representatives to assist mcans, m§ out such additional on-site respons~llmee 3 2.2 Project Representatives shall be selected, employed and directed by the Arclutect, end the Architect shall be compensated therefor as agreed by the Owner and Architect The duties, responsibilities and limitations of authonty of Project Representatives shall be as descnbed m the echtmn of AIA Document B352 current as of the date of th~s Agreement, unless otherwise agreed 3.3 CONTINGENT ADDITIONAL SERVICES 3.3 1 Making material revis~ons m Drawings, Specifications or other documents when such revisions are inconsistent voth approvals or ms~'uctions previously given by the Owner, including revisions made necessary by adjuslments m the Owner's program or Project budget, 2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3 due to changes required as a result of the Owner's fmlure to render decision m a tnnely manner 3.3.2 Providmg services required because of sigmficant changes m the Project mclodmg, but not lmuted to, s~ze, quality, complexity, the Owners schedule, or the method ofhiddmg and contracting for construction, except for services required trader Subparagraph 2 5 2 3.3,3 Preparing Drawm§s, Specifications and other documentation and supporting data, and providing other services m connection with Change Orders and Cons~uction Change Directives 3.3.4 Providing consultation concemm§ replacement of Work damaged by f'ue or other cause during consti'uct~on, and furmslung services requued m connection w~th the replacement of such Work 3.3~ Providing serwcas made necessary by the default of the Conf,'actor, by major defects or deficiencies m the Work of the Contractor, or by failure of performance of either the Owner or Conlractor under the Contract for Construct~on~ 3~3.6 Providing services m evaluating an extensive number of clauns subn'aCted by the Contractor or others ua connection with the Work PAGE 5 3.3 ? Providing services m connection wth a pubhc heanng, arbitration proceeding or legal proceeding except where the Architect is party thereto 3.3 8 Preparing documents for alternate, separate or sequential bids or providing services m connection with bidding or conslrucilon prior to the completion of the Consiruct~on Documents Phase 3.4 OPTIONAL ADDITIONAL SERVICES 3 4 1 Providing i'mancml feaslhihty or other special stothes 3 4 2 Providing planning surveys, site evaluations or comparative studies of prospective sites 3.4.3 Providrug specml surveys, envuonmantal studies and subnnsstons reqmred for approvals of govenunental anthormes or others having junsthctlon over the ProJeCt 3 4 4 Provithng services relative to future facth~es, systems and equipment 3 4.5 Providing services to Investigate exlsimg condltlons or factht~es or to make measured drawings thereof 3 4.6 Providing services to venfy the accuracy of drawings or other mformat~on funushed by the Owner 3.4 ? Provichng coordination of construction performed by separate contractors or by the Owner's own forces and coordination of sarvlces reqmred m connect~nn vath consi~uct~on performed and equipment supplied by the Owner 3 4 8 Providing services In connection vath the work of a construction manager or separate consultants retained by the Owner 3 4.9 Providing datalled quantity surveys or Inventories of material, equipment and labor 3 4.10 Providing analyses of owning and opeintmg costs 3.4.11 Making Invas~gat~ons, inventories of InateHals or equipment, or valuations and detailed appraisals of existing fa~llmas 3 4.12 Providing assistance In the ulahTatlon of equipment or systems such as teslmg, adjusting and balancing, p~l~arat~on of operation and maintenance manuals, training personnel for operation and maintenance and consuhat~on thu'mg operation 3.4.13 Providing interior daslgn and similar services required for or m connection w~th the salect~on, p~ocureinent or installation of furniture, furmshmgs and related equipment 3 4.14 Providing services other than as provided m Section 2 6 4, after issuance to the Owner of the f'mal Certificate for Payment and expiration of the Warranly penod of the Contract for Construction :t.4,15 Providing services of consultants for other than architectural, structural, mechamcal and electrical engineering pomons of the Project provided as a part of Basic Services 3 4.16 Providing any other services not otherwise mchided In tins Agreement or not customanly furmshed m accordance w~th generally accepted architectoral practice 3 4.17 Preparing a set of reproducible record drawings shawlng slgmficant changes m the Work made dunng consWoct~on based on masked-up pnnts, drawings and other data funushed by the Contractor to the Architect (This is for drawings prepared In addrt~on to those specified m Section 2 5 19 ) PAGE 6 ARTICLE 4 OWNER'S RESPONSIBILITIES 4 1 The Owner shall consult with the Arclntect regarding reqan:ements for the ProJect, including (1) the Owner's objecttves, (2) schedule and design constramts and cntena, including space requn:emants and relataonslups, flerabthty, expendabihty, specml equipment, systems and site requirements, as more spectfically descnhad in Paragraph 2 2 1 4 2 The Owner shall estebhsh and update an overall budget for the Project, including the ConstmcUon Cost, the Owner's other costs and reasonable contmgancles related to all of thase costs 4.3 If requested by the Arctntect, the Owner shall fun'ash evidence that financial arrangements have been made to fi~lfill the Owner's obhgat~ons under tins Agreement. 4 4 The Owner shall designate a representst~ve authorized to act on the Owner's behalf with respect to the Project The Owner or such anthonzed representet~ve shall render daemons m a ttmely manner pertammg to documents subrmtted by the Arclutect m order to avoid unreasonable delay m the orderly and sequential progress of the Arch~tecfs 4.$ The Owner shall fmmsh surveys desunbmg physical charactenst~cs, legal lamtat~ons and utthty locations for the site of the Project, and a written legal dascrrpt~on oftha site The surveys and legal mformat~on shall include, as ap- phcable, grades and lines of s~'eets, alleys, pavements and adjoining property and structures, adjacent drainage, rights- of-way, restrictions, easements, encroachments, zunmg, deed restrictions, boundaries and contours of the site, locanons, danensions and necessary date pertemmg to ex~stmg bmldmgs, other tmprovements and trees, and mformat~on concerning available utshty services and lines, both public and private, above and below gra&, including reverts and depths All'tbe mformattun on the survey shall be referenced to a project benchmark 4.6 The Owner shall furmsh the sermcas of geotechmcal engmeers when such services are requested by the Arclutect. Such services may include but are not hrmted to test bonngs, test pits, determinations of stol beanng values, percolatmn tests, evaluations of hazardous materials, ground corroston and resistively tests, including necessary operaUons for anticipating sub-sod condmons, with reports and appropriate professional recommendations 4 6 1 The Owner shall filrotsh the services of other consultants when such services are reasonably reqmred by the scope of the Project and are requested by the Arclutect and are not retained by the Architect as part of ~ts Basic Services 4 7 The Owner shall furmsh structural, mechamcal, chemtcal, atr and water polluuon tests, tests of hazardous materials, and other laboratory and envu-onmentel tests, inspections and reports reqmred by law or the Contract Documents 4 8 The Owner shall furmsh all legal, accounting and insurance counseling services as may be neceasary at any tnne for the Project, mcluchng anthtmg services the Owner may reqmre to verify the Contractor's Apphcat~ons for Payment or to ascertem how or for what purposes the Contractor has used the money paid by or on behalf of the Owner 4 9 The services, mfomlatmn, surveys and reports requn:ed by Paragraphs 4 5 through 4 8 shall be furmshed at the Owner's expense, and the Arctutect shall be ant~fled to rely upon the accuracy and completeness thereof m the absence of any negligence on the part of the Architect 4 10 The Owner shall give prompt wnttan not~ce to the Arcbatect if the Owner becomes aware of any fault or defect m the Project or nonconformance vath the Conlract Documents 4 11 Arclntect shall propose language for certfficates or ce~ficat~ons to be requested of the Arclutect or Arclutect's consultants and shall subrmt such to the Owner for review and approval at least fourteen (14) days prior to execuUon The Owner agrees not to request certifications that would reqmre knowledge or services beyond the scope of this Agreement PAGE 7 ARTICLE 5 CONSTRUCTION COST 5 1 DEFINITION 5 1 1 The Consffnction Cost shall be the total cost or estunated cost to the Owner of all elements of the Project designed or specified by the Arointect 5 1.2 The Constntction Cost shall mcinde the cost at current market ratas of labor and matermls furmshed by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for the Contractors overhead and profit In adthtion, a reasonable allowance for contmgencles shall be mchided for roarket conthtmus at the tune of bidding and for changes m the Work dunng consUuctmn 5 1.3 Constrnctmn Cost does not include the compensation of the Arcintect and Arcintecfs consultants, the costs of the land, rights-of-way, financing or other costs winch are the responsththty of the Owner as provided m Amcle 4 5 2 RESPONSIBILITY FOR CONSTRUCTION COST 5 2 1 Evalnatmns of the Owner's Project budget, prelmunary estunates of Construction Cost and detailed estunates of Constxnct~on Cost p~pared by the Arcintact represent the Arcintecfs best judgment as a design professional fanuhar w~th the cons~uc~on mdusu~' It is reco~m~ed, however, that neither the Arcintect nor the Owner has control over the cost of labor, materials or equipment, over the Contractors methods of dcternunmg bid pnces, or over competitwe bidding or market conthtions Acoordmgly, the Arcintect cannot and does not warrant or represent that bids will not vary fi:om the Owner's Project budget or from any estrmate of ConstmcUon Cost or evahiaUon prepared or agreed to by the Arcintect $ 2.2 No ftxed lmut of Constmc~on Cost shall be estabhshed as a condttion of tins Agreement by the furmsinng, proposal or establishment of a Project budget, unless such fixed lm~t has been agreed upon m wnUng and signed by the parUes thereto If such a fixed lmut has been estabhshed, the Arcintect shall be perrmt~ad to include contingencies for design, bidding and price escala~on, to detamune what matanals, equipment, component systems and types of comuuc- tmn are to be included m the Contract Documents, to make reasonable adjustments m the scope of the Project and to include m the Contract Documents alternate bids to adjust the Construction Cost to the fixed lmut F~xed lnmts, ff any, shall be increased m the amount of an increase m the Contract Sum occurring after execution of the Contract for Construction 5 2.3 If thc Bidding Phase has not commenced wxthm 90 days after the Architect subrmts thc Constrnction Documents to the Owner, any Project budget or fixed lumt of Construction Cost shall be adjnsted to reflect changes m thc general level of prices m the construction industry between thc date of subnusslon of thc Constmctmn Documents to the Owner ~ thc date on winch proposals arc sou~,ht ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6 1 The Drawings, Specifications and other documents prepared by the Arcintect for flus ProJect are instruments of the Arclute~s service for use solely voth mspeet to tins Project and, unless otherwise provided, the Arcintect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyn~in The Owner shall be pemutted to retain copies, mchidmg reproducible copies, of the Arcintect~s Drawings, Specifications and other documents for reformation and reference m connection with the Owner's use and occupancy of the Project The Arcintect's Drawings, Specifications or other documents shall not be used by the Owner or others on other projeata for ad&tmns to tins Project or for completion of this Project by others, unless tins Agreement is termmatad because Architect ~s m default of tins Agreement, at which tune the documents become the property of the City of Denton 6 2 Subnnsslon or thstnbution of documents to meet official regulatory requirements or for smular purposes m connection with the Project is not to be construed as pubhcatton m derogation of the Arctutect's reserved rights PAGE 8 ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7 1 Arelutoct may terminate this Agreement upon not less than tlurty days written noUce should the Owner fail substantmlly to perform In accordance with the terms of tills Agreement through no fault of the Arctutect Owner may terminate this Agreement or any phase thereof upon thirty (30) days prior wntten notice to the Arctutect with the understanding that lmmechatoly upon receipt of such not,ce, all work and labor being performed under the Agreement shall cease immediately Before the end of the thn'ty (30) day period, Arcintect shall invoice the Owner for all work It performed prior to the receipt of such notice No amount shall be due for lost or ant~clpeted profits All plans, field surveys, and other data related to the Project shall become proper'o/of the Owner upon teronna~on of the Agreement and shall be promptly delivered to the Owner m a reasonably orgamzed form~ Should Owner subsequently contract vath a new arctutoct for continuation of services on the Project, Arelutect shall cooperate m providing mformat~on. 7.2 If the Project is suspended by the Owner for more than 30 conseent~ve days, the Arclutect shall be compensated for services performed prior to not,ce of such suspension When the Project is resumed, the Arcfutecfs compensa~on shall be eqmtably adjusted to prowde for expenses recurred m the interruption and resumption of thc Arclutocfs services 7.3 Tins Agreement may be terminated by the Owner upon not less than seven days written not,ce to the Arclutoct m the event that the Project is permanently abendoned If the Project is abandoned by the Owner for more than 90 conseentlve days, the Arelutect or the Owner may terminate flus Agreement by giving written not,ce 7.4 Fatlure of the Owner to make payments to the Arclutect m accordance w~th tins Agreement shall be considered substantial nonperformance and cause for temuna~on ?.~ If the Owner fads to make payment to A_tclntect within thirty (30) days of receipt of a statement for services properly performed, the A,relutoct may, upon seven days written not,ce to tho Owner, suspend performance of services under tim Agreement Unless Arcfutect receives payment m full wlflnn seven (7) days of the date of the not,ce, the suspension shall take effect without further no~lce In the event of a suspension of serwces under tfus sec~on, the Architect shall have no hablhty to the Owner for delay or damage caused the Owner because of such suspension of services 7 6 In the event of termination not the fault of the Arcbatect, the Arcfutect shall be compensated for services properly performed prior to termination ARTICLE 8 MISCELLANEOUS PROVISIONS 8 1 Tlus Agreement shall be governed by the laws of the State of Texas 8 2 Terms m tim Agreement shall have the same meaning as those m AIA Document A201, General Concht~ons of the Contract for Construction, current as of tile date of tills Agreement 8.3 The Owner end Architect, respectively, brad themselves, their partners, successors, assigns and legal representatives to the other party to tfus Agreement end to the parmers, successors, assigns and legal representauves of such other pa~y with respect to all covenenta of tins Agreement Netther Owner nor Arcfutect shall assign tins Agreement without the written consent of the other 8.4 T~ms Agreement represents the entire end integrated agreement between the Owner and Arclutect and supersedes all liner negotiations, representations or agreements, either written or oral This Agreement may be emended only by written msmun~nt signed by both Owner end Arcfutect 8 5 Nothing contained m fins Agreement shall create a contractual relat~onsfup with or a cause of action m favor ora third party against either the Owner or Architect PAGE 9 8 6 Unless otherwise provided m this Agreement, the Architect and Architect's consultants shall have no respon- slblhty for the discovery, presence, lumdlmg, removal or disposal of or exposure of persons to hazardous materials m any form at the Project site, mchidmg but not hmtted to asbestos, asbestos products, polychlormated blphenyl (PCB) or other toxic substances, provided, however, Architect shall have the respansththty to and shall report to the Owner the location of any hazardous material that an architect of sumlar sktil and expense should have not,ced 8 ? Upon receipt of prior wnt~n approval of Owner, the Architect shall have the right to include mpresantat~ons of the design of the Pro.~ect, including photographs of the exterior and interior, among the Architect's promotional and professional materials The Architect"s materials shall not mchide the Owner's confidentml or proprietary mformaUon ~f the Owner has previously advised the Architect m writing of the specific reformation considered by the Owner to be confidentml or proprietary The Owner shall provide professional cretht for the Architect on the construction sign and m the promotional materials for the Project ARTICLE 9 PAYMENTS TO TI~ ARCIIITECT 9 1 DIRECT PERSONNEL EXPENSE 91.1 D~rect Personnel Expense m defined as the d~rect salartes of the Arclutect's personnel engaged on the Protect and the posen 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 sumlar conmbutlons and benefits 9.2 REIMBURSABLE EXPENSES 9 2.1 Reunbursable Expenses are m adtht~on to compensaUon for Basic and AddlUonal Services and mchide expenses recurred by the Architect and Architecfs employees and consultants m the mterast of the Project, as ldentdied ar the following Clauses 9 2 1 1 Expense of ~ausportat~on m connecUon w~th the Project, expenses m connect~en w~th authorized out-of-town ~avel, leng-chstance commumcat~ons, and fees paid for securing approval of anthont~es havarg jurisdiction over the Project 9.2.1.2 Expense of reproducuons (except the reproducuon of the sets of documents referenced m Subparagraph 2 6 19), postage and handling of Drawings, Specifications and other documents 9.2.1.3 If authorized m advance by the Owner, expense of overtone work requmng higher than regular rates 9 2 1 4 Expense of renderings, models and mnck-ups requested by the Owner 9.2 1 ~ Expense of computer-aided design and drafting equipment rune when used m connection w~th the Project 9.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES 9.3.1 Payments for Basic Services shall be made monthly and, where applicable, shall be m pmpomon to set- vices performed w~thm each phase of service, on the basis set forth m Subparagraph 10 2 2 9.3 2 If and to the extent that the rune nnt~ally established m Subpamgreph 10 4 1 of llus Agreement ~s exceeded or extended through no fault of the Architect, compensation for any services rendered during the eddmonal period of Ume shall be computed m the manner set forth m Subparagraph 10 2 2 9.3.3 When compensation is based on a percentage of ConsU'uct~on Cost and any porUons of the Project are deleted or otherwise not constructed, compensauon for those pomons of the Project shall be payable to the extent services are performed on those pomons, m accordance with the schedule set forth m Subparagraph 10 2 2 based on (1) PAGE 10 the lowest bona fide bid or (2) if no such b~d or proposal is received, the most recent prehimnary es~'~ate of Cons~ucUnn Cost or detailed esmnate of Consm~c~on Cost for such pomons of the Project 9 4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 9.4 1 Payments on account of the Archite~s Adch~onal Serwces and for Reunbursable Expenses shall be made monthly upon presentation of the Arohitect's statement of services rendered or expenses recurred 9 5 PAYMENTS WITIt~ELD 9 5 1 No deductions shall be made from the Architect's compensaUon on account of penalty, hqmdated damages or other sums w~thheld from payments to comractors, or on account of the cost of changes m the Work other than those for which the Architect Is responsible 9 6 ARCI~TECT'S ACCOUNTING RECORDS 9 6.1 Architect shall make available to Owner or Owner's authorized representative records of Reunbursable Expenses and expenses pertaining to Additional Services and services perfonv, ed on the basis of a multiple of Direct Personnel Expense for mspecaon and copying dunng regular bnsmess bours for three years after the date of the/'mai Cemficate of Payment, or nntfi any hUgat~on related to the Project is f'mal, whichever date is later ARTICLE 10 BASIS OF COMPENSATION The Owner shall compensate the Ardutect as follows I0 1 BASIC COMPENSATION 10 1 1 FOR BASIC SERVICES, as descn~oed m A~cle 2, and any other services included m Amcle 11 as part of Basic Services, Basic Compensaaon shall be $49,500 00 10 1 2 Progress payments for Basic Serwces m each phase stroll total the following percentages of the total Basic Compensa~/nn payable o Schamat~c Design Phase % o DesIgn and Development Phase 40% o Constxuc~on Documcnts Phase 45% o Bidding Phase 5% o Construction Phase 10% o Total Basic CompensaUon 100% 10 2 COMPENSATION FOR ADDITIONAL SERVICES 10 2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described m Paragraph 3 2, compensatton shall be computed as follows Section 10 2 2 10 2 2 POR ADDITIONAL SERVICES OF THE ARCHITECT, as described m Amclas 3 and 11, other than (1) Add~onal Project Reprasentallon, as described m Paragraph 3 2, and (2) services included m A_r~c]e 11 as part of Adthtlonal Services, but excludmg services of consultants, compensation shall be computed as follows Principals $95 00 per hour Assocmtes 65 00 per hour Techmcal Staff 45 00 per hour Clerical Staff 25 00 per hour PAGE 11 10.2.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including adchuonal sl~uctoral, mechamcal and electncal engmeenng services and those provided under Subparagraph 3 4 16 or ~dent~fied m Amcle 11 as part of Ad/ht~onal Services, a multiple of 1 1 tunes the amounts bdled to the Arctutect for such serwces 10.3 REIMBURSABLE EXPENSES 10.3 ! FOR REIMBURSABLE EXPENSES, as dascnbed tn Paragraph 9 2, and any other items included m Ar~cle 11 as Reunbursable Expenses, a multiple of one (1) t~nes the expenses recurred by the Architect, the Arehtecfs employees and consultants m the interest of the Pro. leer 10 4 ADDITIONAL PROVISIONS 10 4.1 IF THE BASIC SERVICES covered bJ this agreement have not been completed wiflm~ one year of the date of execution hereoi, fltrough no fault of the Architect, extension of the Architect's set'vices beyond that Ume shall be compensated as provided in Subparagraphs 9 3 2 and l0 2 2 10 4 2 Payments are due and payable forty-five (45) days from the date of the Architect's invoice Amounts for serwces properly performed which remain unpaid swty (60) days al%r the invoice date shall bear interest at the rate of one 0%) p~cent per month ARTICLE ll OTHER CONDITIONS OR SERVICES 11.1 Architect shall mammn, at no expense to Owner, a professional hahihty (errors and on'ozmons) insurance policy placed with a company rated at least B+/X by Best~s Key Raung Guide, authorized to do business m Texas, m an amount not less than five hundred thousand dollars ($$00,000) Such pohcy shall require the giving of wnt~en not~ce to Owner at least thn-ty days prior to cancallatton, non-renewal or material moddlcat~on of any policies, evidenced by return receipt of Uinted States Cemfled Mall Arclutect shall fiumsh Owner with copies of said policies or cemficates evidencing such coverage 11.2 Architect agrees to indemmfy, hold harmless, and defend the City, at Arctutect's cost, its officers, agents, and employees from and against any and all clam~ or sints for m. lunes, damages, loss, or hahihty of whatever kind or character, arising out of or in connec~on with the performance by the Architect of those sarv~ces contemplated by tlns Agreement, based upon allegations of neghgent acts or onnsswm of Architect, its officers, agents, employees, consul- rants and subconUactors Tlus Agreement entered into as of the day and year fn'st written above CITY OF DENTON, TEXAS, DL~TZIN SIMS STOFFELS, INC TE4D BENAVIDES, CITY MANAGER ~I)gi'~lIS ~SIMS, PRESIDgNT APPROVED AS TO LEGAL FORM HERBERT L PROUTY, CITY ATTORNEY F ~sharedkJ~ptkLOL\O~ Docun-ent$\ConWacta\98\Dunlan ARCHITECTURAL SERVICES 2 doc PAGE 12