1994-025E=\NPDOCS\ORD\S~TH.LAK
AN ORDINANCE OF THE CITY OF DENTON, TEXAS AUTHORIZING THE MAYOR TO
EXECUTE AN AGREEMENT WITH NEWMAN, JACKSON, BIEBERSTEIN, INC. FOR
PROFESSIONAL ARCHITECTURAL SERVICES RELATING TO DESIGN OF THE SOUTH
LAKES PARK FOR THE CITY OF DENTON; AUTHORIZING THE EXPENDITURE OF
FUNDS THEREFORE; AND PROVIDING AN EFFECTIVE DATE.
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS~
SECTION I. That the Mayor is hereby authorized to execute an
agreement between the City of Denton and Newman, Jackson,
Bieberstein, Inc. for professional architectural services relating
to the design and construction of the South Lakes Park, under the
terms and conditions, contained in said agreement, which is
attached hereto and made a part hereof.
SECTION II. That the City Council hereby uuthorizes the
expenditure of funds in the manner and amount as specified in the
agreement.
SECTION III. That this ordinance shall become effective
immediately upon its passage and approval.
PASSED AND APPROVED this the/~w~'~day of ~J~, 1994.
BOB CASTLEBERRY, MA/OR ~
/
ATTEST:'
JENNIFER WALTERS, CITY SECRETARY
APPROVED AS TO LEGAL FORM:
DEBRA A. DRAYOVITCH, CITY ATTORNEY
DATE: FEBRUARY 15, 1994
CITY COUNCIL REPORT
TO: Mayor and Members of the City Council
FROM: Lloyd V. Harrell, City Manager
SUBJECT: RFSP # 1562 - SOUTH LAKES PARK DESIGN
RECOMMENDATION: We recommend this proposal be awarded to Newman, Jackson
and Bieberstein Inc. in the negotiated amount of $87,715.00.
SUMMARY: This proposal is for the design through construction supervision for
the development of South Lakes Park.
Four qualified Architects/Park Designers responded to our request for proposals.
After interviewing each applicant and a review of their past work, Newman, Jackson
and Bieberstein Inc. were determined to be the most qualified for the project.
In compliance with State Law for selection of a Professional Service. Once the most
qualified architect was determined, staff negotiated a price for service contract. The
price of $87,715.00 is in the opinion of staff a fair and reasonable price for the
service required. Staff compared this price with prices paid by other cities for
comparable projects. After several negotiation meetings with the architects staff was
able to bring the prices in line with market value of approximately 8.7% of estimated
construction cost.
BACKGROUND: Memorandum from Mickey Ohland, Park Planning Coordinator, List
of tentative project elements.
PROGRAMS~ DEPARTMENTS OR GROUPS AFFECTED: Park and Recreation
Department, Newman, Jackson and Bieberstein Inc. and Citizens of Denton.
FISCAL IMPACT: South Lakes Park Development will be funded from a combination
of Bond Funds and Texas Park and Wildlife Grant Funds.
City Manager
Title: Purchasing Agent
450 .AGENDA
Appendix
PROJECT EI,EMENTS
1. Concrete Hike and Bike Trails, 8' x 1.25 mile
2. Soft Surface Hiking Trails, 1 mile
3. Two (2) Playground Structures.
4. Two (2) Picnic Pavilions.
5. Ten (10) Picnic Units (Concrete Pad, Table, Trash, Grill).
6. Lake (±64,900 Cubic Yards, ±Seven Surface Acres).
7. Fishing Pier (±300 Square Feet).
Two (2) Unlighted Tennis Courts.
9. Sand Volleyball Court~
10. Multi-Purpose/Basketball Court.
11. Landscaping.
12. Signage.
13. Miscellaneous Site Furniture.
14. Parking/Interior Roads.
15. Restroom.
ClTY of DENTON, TEXAS MUNICIPAL BUILDING / 215 E. McKINNEY / DENTON, TEXAS76201
Memorandum
DATE: February 7, 1994.
TO: Tom Shaw
Purchasing Agent
FROM: Mickey Ohland
Park Planning Coordinator
SUBJECT: South Lakes Park Consultant Selection - City Council Agenda
This is to notify you that after evaluating and interviewing each of the four Consultants that
submitted a proposal for the professional and technical services required for the design and
construction of South Lakes Park, Staff recommends that Newman, Jackson, Bieberstein, Inc. be
selected as the Consultant for this project. Staff has successfully negotiated a fee of $87,715.00
for the services to be provided by the Consultant..
We would like for this item to be placed on the February 15, 1994, City Council Consent Agenda.
If you have any questions, please do not hesitate to call me at x8505.
Mick~y Ohland~'
TSMEM2. SAM
817/566-8200 D/FW METRO 434-2529
e:\~pdocs\k\archit.k
AGREEMENT FOR ARCHITECTURAL SERVICES
This Agreement made as of the ~ay of February, 1994
between the City of Denton, Texas, hereinafter referred to as
"Owner" and Newman, Jackson, Bieberstein, Inc., 13154 Coit Road,
suite 105, Dallas, Texas 75240, a Texas corporation, hereinafter
referred~o as "Architect" for the following Project: The develop-
ment of S'outh Lakes Park to include concrete hike and bike trails,
soft Sbt'face hiking trails, playground structure, two picnic
pavilions, ten picnic units, lake, fishing pier, two tennis courts,
sand volleyball court, basketball court, landscaping, signage, site
furniture, parking, interior roads and a restroom. The Owner and
Architect agree as set forth below.
ARTICLE 1
ARCHITECT,S RESPONSIBILITIES
1.1 ARCHITECT,S SERVICES
1.1.1 The Architect's services consist of those services per-
formed by the Architect, Architect's employees and Architect'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 exped-
itiously as is consistent with a high degree of professional skill,
care and knowledge, as provided in Article 2.6.5, 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 perfor-
mance of the Architect's services which may be adjusted as the
Project proceeds, and shall include allowances for periods of time
required for the Owner's review and for approval of submissions by
authorities having jurisdiction over the Project. Time 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 this schedule shall be mutually acceptable
to both parties.
1.1.3 The services covered by this Agreement are subject to
the time limitations contained in Subparagraph 10.4.1.
ARTICLE 2
SCOPE OF ARCHITECT'S BASIC SERVICES
2.1 DEFINITION
2.1.1 The Architect's Basic Services consist of those describ-
ed in Paragraphs 2.2 through 2.6 and any other services identified
in Article ll as part of Basic Services, and include without limi-
tation normal structural, mechanical and electrioal engineering
services and any 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 SOHEF~TIC DESIGN PHASE
2.2.~ 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, construction schedule and construction budget
requirements, each in terms of the other, subject to the limita-
tions 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
construotion budget requirements, the Architect shall prepare, for
approval by the Owner, Schematic Design Documents consisting of
drawings and other documents illustrating the scale and relation-
ship of Project components. The Schematic Design shall contemplate
compliance with applicable laws, statutes, ordinances, codes and
regulations.
2.2.5 The Architect shall submit to the Owner a preliminary
detailed estimate of Construction 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 establish
an elapsed time factor for the period of time from the commencement
to the completion of construction.
2.3 DESIGN DEVELOPMENT PHASE
2.3.~ 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 applicable laws, statutes, ordinances,
codes and regulations. Notwithstanding Owner's approval of the
documents, Architect warrants that the Documents and specifications
will be sufficient and adequate to fulfill the purposes of the
Project.
2.3.2 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.
PAGE 2
2.4 CONSTRUCTION DOCUMENTS PHASE
2.4.1 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 applicable laws, statutes, ordinances, codes and
regulations.
2.4.2 The Architect shall assist the Owner in the prepara-
tion of the necessary bidding information, bidding forms, the
Conditions of the contract, and the form of Agreement between the
Owner and contractor.
2.4.3 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.
2.4.4 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 BIDDINO
2.5.1 The Architect, following the Owner's approval of the
Construction Documents and of the latest preliminary 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.
2.6 CONSTRUCTION PHASE -- ADMINISTRATION OF THE CONSTRUCTION
CONTRACT
2.6.1 The Architect's 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.
PAGE 3
2.6.2 The Architect shall provide detailed administration 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 this Agreement, unless
otherwise provided in this Agreement.
2.6.3 Construction Phase duties, responsibilities and limita-
tions of authority of the Architect shall not be restricted, modi-
fied or extended without written agreement of the Owner and
Architect.
2.6.4 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.
2.6.5 The Architect shall inspect the construction site at
least twice a month, on an average, regardless of whether con-
struction is in progress, to become familiar with the progress and
quality of the Work completed and to determine if the Work is being
performed 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 dis-
covering and promptly reporting to the Owner any KNOWN defects or
deficiencies in the work of Contractor or any subcontractors. The
Architect represents that it will follow high professional stan-
dards and exercise a greater degree of skill, care, knowledge and
diligence than an architect of ordinary skill would exercise under
the same or similar circumstances in performing all services under
this Agreement. Any defective designs or specifications furnished
by the Architect will be promptly corrected 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 Architect'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, tech-
niques, sequences or procedures, or for safety precautions and pro-
grams 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 insofar
as such failure may result from Architect'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.
PAGE 4
2.6.7 The Architect shall at all times 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 author-
ized, the Owner and Contractor shall communicate through the
Architect. Communications by and with the Architect's consultants
shall be through the Architect.
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.
2.6.L0 The Architect's certification for payment shall con-
stitute a representation to the Owner, based on the Architect'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
contract 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, techniques, 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.LL The Architect shall have the responsibility and
authority to reject Work which does not conform to the Contract
Documents. Whenever the Architect considers it necessary or
advisable for implementation of the intent of the Contract Docu-
ments, 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 this authority of the
Architect nor a decision made in good faith either to exercise or
not exercise such authority shall give rise to a duty or responsi-
bility of the Architect to the Contractor, Subcontractors, material
and equipment suppliers, their agents or employees or other persons
performing portions of the Work.
2.6.~2 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) de-
termining compliance with applicable laws, statutes, ordinances and
codes; and (2) determining whether or not the Work, when completed,
PAGE 5
will be in compliance with the requirements of the Contract Docu-
ments. 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
Architect'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 Contrac-
tor to the extent required by the Contract Documents. The Archi-
tect's review shall not constitute approval of safety precautions
or, unless otherwise specifically stated by the Architect, of con-
struction 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.
Z.6.13 The Architect shall prepare Change Orders and Con-
struction 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 accor-
dance 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 Time which are not inconsistent with the
intent of the Contract Documents.
Z.6.X4 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 Contact Documents
and assembled by the Contractor and shall issue a final certificate
for Payment.
Z.6.~$ The Architect shall interpret and provide recommenda-
tions on matters concerning performance of the Owner and Contractor
under the requirements of the Contract Documents on written request
of either the Owner or Contract. The Architect's response to such
requests shall be made with reasonable promptness and within any
time limits agreed upon.
2.~.X~ 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, shall not show partiality to either, and
shall not be liable for results or interpretations or decisions so
PAGE 6
rendered in good faith in accordance with all the provisions of
this Agreement and in the absence of negligence.
2.6.17 The Architect shall render written 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.
2.6.1S The Architect (1) shall exercise a high degree of care,
skill, knowledge and diligence, as provided in Article 2.6.5, in
the rendition of all services under the Agreement and (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 diminish any of the
Architect's obligations thereunder.
2.6.19 The Architect shall provide the Owner with one set of
reproducible prints showing all significant changes to the Con-
struction Documents during the Construction Phase and shall also
provide the Owner with one set of reproducible as-built Drawings
for the Owner's file.
ARTICLE 3
ADDITIONAL SERVICES
3.1 GENERAL
3.1.1 The services described in this Article 3 are not in-
cluded 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 de-
scribed 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 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
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 Addition-
al 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 responsibilities.
PAGE 7
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, respon-
sibilities 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.
3.3 CONTINGENT ADDITIONAL BERVICEB
3.3.1 Making material revisions in Drawings, Specifications
or other documents when such revisions are:
1. inconsistent with approvals or instructions previously
given by the Owner, including revisions made necessary
by adjustments in 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
failure to render decision in a timely manner.
3.3.2 Providing services required because of significant
changes in the Project including, but not limited to, size,
quality, complexity, the Owner's schedule, or the method of bidding
and contracting for construction, except for services required
under Subparagraph 5.2.5.
3.3.3 Preparing Drawings, Specifications and other documenta-
tion and supporting data, and providing other services in connec-
tion with Change Orders and Construction Change Directives.
3.3.4 Providing consultation concerning replacement of Work
damaged by fire or other cause during construction, and furnishing
services required in connection with the replacement of such Work.
3.3.5 Providing services made necessary by the default of the
Contraotor, by major defects or deficiencies in the Work of the
Contractor.
3.3.6 Providing services in evaluating an extensive number of
claims submitted by the Contractor or others in connection with the
Work.
3.3.? Providing services in connection with a public hearing,
arbitration proceeding or legal proceeding except where the
Architect is party thereto.
PAGE 8
3.3.8 Preparing documents for alternate, separate or sequen-
tial bids or providing services in connection with bidding or
construction prior to the completion of the Construction Documents
Phase.
3.4 OPTIONAL ADDZTIONAL SERVICES
3.4.1 Providing financial feasibility or other special
studies.
3.4.2 Providing planning surveys, site evaluations or compara-
tive studies of prospective sites.
3.4.3 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 facilities, sys-
tems 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.
3.4.7 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.
3.4.8 Providing services in connection with the work of a con-
struction 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.
3.4.11 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 during operation.
3.4.12 Providing services of consultants for other than archi-
tectural, structural, mechanical and electrical engineering
portions of the Project provided as a part of Basic Services.
PAGE 9
3.4.X3 Providing any other services not otherwise included in
this Agreement or not customarily furnished in accordance with gen-
erally accepted architectural practice.
3.4.X4 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 Con-
tractor to the Architect. This is for drawings prepared in
addition to those specified in Section 2.6.19.
~RTICLE 4
OWNER'S RESPONSIBILITIES
4.X 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.Z 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.
4.3 If requested by the Architect, the Owner shall furnish
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 time-
ly 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 furnish surveys describing physical char-
acteristics, 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 applicable, grades
and lines of streets, alleys, pavements and adjoining property and
structures; adjacent drainage; rights-of-way, restrictions, ease-
ments, encroachments, zoning, deed restrictions, boundaries and
contours of the site; locations, dimensions and necessary data
pertaining to existing buildings, other improvements and trees; and
information concerning available utility services and lines, 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.
PAGE 10
4.6 The Owner shall furnish the services of geotechnical
engineers when such services are requested by the Architect. Such
services may include but are not limited to test borings, test
pits, determinations of soil bearing values, percolation tests,
evaluations of hazardous materials, ground corrosion and resistivi-
ty tests, including necessary operations for anticipating sub-soil
conditions, with reports and appropriate professional
recommendations.
4.6.1 The Owner shall furnish the services of other consul-
tants 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 insur-
ance 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 furnished at the Owner's
expense, and the Architect shall be entitled to rely upon the ac-
curacy and completeness thereof in the absence of any negligence on
the part of the Architect.
4.10 The Owner shall give prompt written notice to the
Architect if the Owner becomes aware of any fault or defect in the
Project or non-conformance with the Contract Documents.
4.11 Architect shall propose language for certificates or
certifications to be requested of the Architect or Architect'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.
ARTICLE 5
CONSTRUCTION COST
5.1 DEFINITION
5.1.1 The Construction Cost shall be the total cost or esti-
mated cost to the Owner of all elements of the Project designed or
specified by the Architect.
PAGE 11
5.1.2 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.
5.1.3 Construction Cost does not include the compensation of
the Architect and Architect's consultants, the costs of the land,
rights-of-way, financing or other costs which are the responsibili-
ty of the Owner as provided in Article 4.
5.2 RESPONSIBILITY FOR CONSTRUCTION COST
5.2.1 Evaluations of the Owner's Project budget, preliminary
estimates of Construction Cost and detailed estimates of Construc-
tion Cost prepared by the Architect represent the Architect's 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 limit 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 permit-
ted to include contingencies for design, bidding and price escala-
tion, to determine what materials, equipment, component systems and
types of construction 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 limit. 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.
PAGE 12
ARTICLE 6
USE OF ARCHITECT'S D~AWINGSv
SPECIFICATIONS i~ND OTHER DOCUMENTS
6.1 The Drawings, Specifications and other documents prepared
by the Architect for this Project are instruments of the Archi-
tect~s 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
permitted to retain copies, including reproducible copies, of the
Architect's Drawings, Specifications and other documents for infor-
mation and reference in connection with the Owner's use and oc-
cupancy of the Project. The Architect's 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 this Agreement, at which time the
documents become the property of the City of Denton.
6.2 Submission er distribution of documents to meet official
regulatory requirements or for similar purposes in connection with
the Project is not to be construed as publication in derogation of
the Architect's reserved rights.
ARTICLE 7
TERMINATIONv SUSPENSION OR ABANDONMENT
7.1 Architect may terminate this Agreement upon not less than
thirty days written notice should the Owner fail substantially to
perform in accordance with the terms of this Agreement through no
fault of the party initiating the termination. Owner may also
terminate this Agreement or any phase thereof upon thirty (30) days
prior written notice to the Architect with the understanding that
immediately upon receipt of such notice, 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
notice. No Amount shall be due for lost or anticipated profits.
Ail plans, field surveys, and other data related to the Project
shall become property of the Owner upon termination of the Agree-
ment 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 notice of such suspension. When the Project is
resumed, the Architect's compensation shall be equitably adjusted
PAGE 13
to provide for expenses incurred in the interruption and resumption
of the Architect's services.
?.3 This Agreement may be terminated by the Owner upon not
less than seven days written notice 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 notice.
7.4 Failure of the Owner to make payments to the Architect in
accordance with this Agreement shall be considered substantial non-
performance and cause for termination.
7.$ If the Owner fails to make payment to Architect within
thirty (30) days of receipt of a statement for services properly
performed, the Architect may, upon seven days written notice 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 notice, the suspension shall take effect without
further notice. In the event of a suspension of services under
this 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 termination not the fault of the Archi-
tect, the Architect shall be compensated for services properly
performed prior to termination.
ARTICLE S
MISCELLANEOUS PROVISIONS
S.~ This Agreement shall be governed by the laws of the State
of Texas.
S.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 this Agreement.
S.3 The Owner and Architect, 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.
S.4 This Agreement represents the entire and integrated agree-
ment between the Owner and Architect and supersedes all prior
negotiations, representations or agreements, either written or
PAGE 14
oral. This Agreement may be amended only by written instrument
signed by both Owner and Architect.
S.$ Nothing contained in this Agreement shall create a con-
tractual relationship with or a cause of action in favor of a third
party against either the Owner or Architect.
S.6 Unless otherwise provided in this Agreement, the Architect
and Architect's consultants shall have no responsibility for the
discovery, presence, handling, removal or disposal of or exposure
of persons to hazardous materials in any form at the Project site,
including but not limited to asbestos, asbestos products, poly-
chlorinated biphenyl (PCB) or other toxic substances provided,
however, should the Architect notice any suspicious or suspect
material on the site during the design or construction of the
project, he will promptly report the presence of such to the Owner.
S.7 Upon receipt of prior written approval of Owner, the
Architect shall have the right 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 Architect's 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 con-
sidered by the Owner to be confidential or proprietary. The Owner
shall provide professional credit for the Architect on the con-
struction sign and in the promotional materials for the Project.
ARTICLE 9
PAYMENTS TO THE ARCHITECT
9.1 DIRECT PERSONNEL EXPENSE
9.1.1 Direct Personnel Expense is defined as the direct
salaries of the Architect's personnel engaged on the Project and
the portion of the cost of their mandatory and customary contri-
butions 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 REIMBURSABLE EXPENSES
9.2.1 Reimbursable Expenses are in addition to compensation
for Basic and Additional Services and include expenses incurred by
the Architect and Architect's employees and consultants in the
interest of the Project, as identified in the following Clauses.
9.2.1.1 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.
PAGE 15
9.2.1.2 Expense of reproductions, postage and handling of
Drawings, Specifications and other documents.
9.2.1.3 If authorized in advance by the Owner, expense of
overtime work requiring higher than regular rates.
9.2.1.4 Expense of renderings, models and mock-ups requested
by the Owner.
9.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
9.3.1 Subsequent payments for Basic Services shall be made
monthly and, where applicable, shall be in proportion to services
performed within each phase of service, on the basis set forth in
Subparagraph 10.2.2.
9.3.2 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 10.2.3.
9.3.3 When compensation is based on a percentage of Construc-
tion 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 por-
tions, in accordance with the schedule set forth in Subparagraph
10.2.2 based on (1) 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
9.4.1 Payments on account of the Architect's Additional
Services and for Reimbursable Expenses shall be made monthly upon
presentation of the Architect's statement of services rendered or
expenses incurred.
9.5 PAYMENTS WITHHELD
9.5.1 No deductions shall be made from the Architect's
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 ACCOUNTINO RECORDS
9.6.1 Records of Reimbursable Expenses and expenses pertaining
to Additional Services and services performed on the basis of a
multiple of Direct Personnel Expense shall be available to the
Owner or the Owner's authorized representative for inspection and
PAGE 16
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.
~RTICLE 10
BASIS OF COMPENSATION
The Owner shall compensate the Architect as follows:
10.1 B~SIC COMPENSATION
10.1.1 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 Eighty-seven Thousand Seven Hundred
Fifteen Dollars and No Cents ($87,715.00).
10.1.2 Progress payments for Basic Services in each phase
shall total the following percentages of the total Basic Compensa-
tion payable:
o Schematic Design Phase 15%
o Design and Development Phase 15%
o Construction Documents Phase 40%
o Bidding Phase 5%
o Construction Phase 25%
o Total Basic Compensation 100%
10.2 COMPENSATION FOR ~DDITIONAL SERVICES
10.2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as
described in Paragraph 3.2, compensation shall be computed as
follows: hourly plus expenses based on hourly rates described in
paragraph 10.2.2.
10.2.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described
in Articles 3 and 11, other than (1) Additional Project Representa-
tion, 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:
Senior Partners $110.00 per hour
Partners 85.00 per hour
Senior Landscape Architect 60.00 per hour
Technician 30.00 per hour
Clerical Staff 27.50 per hour
10.2.3 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
times the amounts billed to the Architect for such services.
PAGE 17
10.3 REIHBURSABLE EXPENSES
10.3.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph
9.2, and any other items included in Article 11 as Reimbursable
Expenses, a multiple of 1.1 times the expenses incurred by the
Architect, the Architect's 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 by April 15, 1995, through no fault of the
Architect, extension of the Architect's services beyond that time
shall be compensated as provided in Subparagraphs 9.3.3 and 10.2.2.
10.4.3 Payments are due and payable thirty (30) days from the
date of the Architectts invoice. Amounts for services properly
performed which remain unpaid thirty (30) days after the invoice
date shall bear interest at the rate of one percent per month.
ARTICLE 11
OTHER CONDITIONS OR SERVICES
11.1 Insurance and Indemnification. Architect shall maintain,
at no expense to Owner, insurance coverage placed with companies
rated at least B+/X by Best's Key Rating Guide, authorized to do
business in Texas, including a professional liability policy in an
amount not less than FIVE HUNDRED THOUSAND DOLLARS ($500,000). Ail
insurance policies shall name the Owner as additional insured
except for professional liability and 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 copies of said policies or certificates of insurance
if acceptable.
Architect agrees to indemnify, hold harmless, and defend the
City, 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, arising out of or in connection with
the performance by the Architect of those services contemplated by
this Agreement, based upon allegations of negligent acts or
omissions of Architect, its officers, employees and subcontractors.
This Agreement entered into as of the day and year first written
above.
PAGE 18
CITY OF DENTON, TEXAS, NEWMAN, JACKSON, BIEBERSTEIN,
OWNER INC. , ARCHITECT~
BOB CASTLEBERRY, ~OR~
ATTEST:
JENNIFER WALTERS, /CITY SECRETARY
BY: . -
APPliED ~TO LEGAL FORM.
DEBRA A. DRAYOVITCH, CITY ATTORNEY
PAGE 19