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1988-0572235L NO $g _zZ 7 AN ORDINANCE AUTHORIZING THE MAYOR TO EXECUTE AN AGREEMENT WITH THE ARCHITECTURAL COLLECTIVE INC FOR PROFESSIONAL ARCHITECTURAL SERVICES RELATING TO THE EXPANSION OF THE MUNICIPAL LABORATORY, AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, AND PROVIDING AN EFFECTIVE DATE THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS SECTION I That the Mayor is authorized to execute an agreement between the City of Denton and The Architectural Collective Inc for professional architectural services relating to the design and construction of the expansion to the Municipal Laboratory, 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 authorizes the expend ture o funds in the manner and amount as specified in the agreement SECTION III That this ordinance shall become effective imme ate y upon its passage and approval PASSED AND APPROVED this the Jtday of C~JLGK~. , 1988 RAY ST H NS, AYOR ATTEST J IFE WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY BY O z:tI_ 2240L THE STATE OF TEXAS § COUNTY OF DENTON § AGREEMENT BETWEEN THE CITY OF DENTON & THE ARCHITECTURAL COLLECTIVE INC FOR DESIGN OF MUNICIPAL LABORATORY This Agreement made as of the ~2 ,rl day of ~~e u 1988 between the City of Denton, Texas, hereinafter re to as "Owner" and The Architectural Collective Inc hereinafter referred to as "Architect" for the following Project Design of the expansion of the Denton Municipal Laboratory 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 performed by the Architect, Architect's employees and Archi- tect'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 highest degree of professional skill 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 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 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 described in Paragraphs 2 2 through 2 6 and any other services identified in Article 11 as part of Basic Services, and include without limitation normal structural, mechanical and electrical engineering services and any other engineering services neces- sary 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, construction 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 alter- native approaches to design and construction of the Project 2 2 4 Based on the mutually agreed-upon program, sche- dule 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 prelimi- nary 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 1 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 2 3 2 The Architect shall advise the Owner of any adjust- ments 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 Pro- 3ect 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 Pro- ject, which shall comply with all applicable laws, statutes, ordinances, codes and regulations 2 4 2 The Architect shall assist the Owner in the prepa- ration 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 adjust- ments to previous preliminary estimates of Construction Cost in- dicated 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 BIDDING OR NEGOTIATION PHASE 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 or negotiated proposals and assist in awarding and preparing contracts for construction 2 6 CONSTRUCTION PHASE - ADMINISTRATION OF THE CONSTRUCTION CONTRACT 2 6 1 The Architect's responsibility to provide Basic Ser- vices 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 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 limitations of authority of the Architect shall not be PAGE 3 restricted, modified 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) as an Additional Service at the owner's direction from time to time during the warranty period described in the contract for Construction, i e one year 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 visit the site at intervals appropriate to the stage of construction or as otherwise agreed by the Owner and Architect in writing 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 On the basis of on-site observations as an archi- tect, the Architect shall keep the Owner informed of the pro- gress 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 Architect represents that he will follow the highest professional standards 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, 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 insofar as such failure may result from Architect's 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 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 authorized, the Owner and Contractor shall communicate through PAGE 4 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 10 The Architect's certification for payment shall constitute a representation to the Owner, based on the Archi- tect'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 Con- tract 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 represen- tation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment or (4) 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 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 pro- visions 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 responsibility 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 12 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) 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 Documents The Architect's action shall be taken 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 judg- ment 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 perfor- mance of equipment or systems designed by the Contractor, all of which remain the responsibility of the Contactor 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 6 13 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 Time which are not inconsistent with the intent of the Contract Documents 2 6 14 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 2 6 15 The Architect shall interpret and provide recom- mendations 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 Archi- tect's response to such requests shall be made with reasonable promptness and within any time limits 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 PAGE 6 form of drawings When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful per- formance by both Owner and Contractor, shall not show partiality to either, and shall not be liable for results for interpreta- tions or decisions so rendered in good faith in accordance with all the requirements of the Owner-Architect Agreement and in the absence of negligence 2 6 17 The Architect shall render written decisions with- in 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 highest professional standards prevailing in the 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 diminish any of the Architects obligations thereunder 2 6 19 The Architect shall provide the Owner with one set of reproducable prints showing all significant changes to the Construction 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 included in Basic Services unless so identified in Article 2, 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 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 PAGE 7 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 responsibilities 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 3 2 3 Through the observations by such Project Represen- tatives, the Architect shall endeavor to provide further pro- tection for the Owner against defects and deficiencies in the Work, but the furnishing of such project representation shall not modify the rights, responsibilities or obligations of the Architect as described elsewhere in this Agreement 3 3 CONTINGENT ADDITIONAL SERVICES 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 or negotiating and contracting for construction, except for services required under Subparagraph 5 2 5 PAGE 8 3 3 3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection 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 Contractor, 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 7 Providing services in connection with a public hearing, 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 in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase 3 4 OPTIONAL ADDITIONAL SERVICES 3 4 1 Providing financial feasibility or other special studies 3 4 2 Providing planning surveys, site evaluations or comparative studies of prospective sites 3 4 3 Providing special surveys, environmental studies and submissions required for approvals of governmental auth- orities or others having jurisdiction over the Project 3 4 4 Providing services relative to future facilities, systems and equipment 3 4 5 Providing services to investigate existing condi- tions or facilities or to make measured drawings thereof 3 4 6 Providing services to verify the accuracy of draw- ings 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 coordina- tion of services required in connection with construction performed and equipment supplied by the Owner PAGE 9 3 4 8 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 3 4 11 Providing interior design and other similar ser- vices required for or in connection with the selection, pro- curement or installation of furniture, furnishings and related equipment 3 4 12 Providing services for planning tenant or rental spaces 3 4 13 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities 3 4 14 Providing assistance in the utilization of equip- ment or systems such as testing, adjusting and balancing, prepa- ration of operation and maintenance manuals, training personnel for operation and maintenance and consultation during operation 3 4 15 Providing services after issuance to the Owner of the final Certificate for Payment, or in the absence of a final Certificate for Payment, more than 60 days after the date of Substantial Completion of the Work 3 4 16 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 17 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice 3 4 18 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 (This is for drawings prepared in addition to those called for in Section 2 6 19 ) ARTICLE 4 OWNER'S RESPONSIBILITIES 4 1 The Owner shall consult with the Architect regarding requirements for the Project, including (1) the Owner's PAGE 10 objectives, (2) schedule and design constraints and criteria, including space requirements and relationships, flexibility, expandability, 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 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 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 furnish 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 applicable, grades and lines 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 improvements and trees, and information concerning avail- able utility services and lines, both public and private, above and below grade, including inverts and depths All the infor- mation on the survey shall be referenced to a project benchmark 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 resistivity tests, including necessary operations for antici- pating sub-soil conditions, with reports and appropriate professional recommendations 4 6 1 The Owner shall furnish 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 his Basic Services 4 7 The Owner shall furnish structural, mechanical, chemical, air and water pollution tests, tests of hazardous PAGE 11 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 furnished 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 4 10 Prompt written notice shall be given by the Owner to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents 4 11 The proposed language of certificates or certifi- cations requested of the Architect or Architect's consultants shall be submitted to the Architect for review and approval at least fourteen (14) days prior to execution The Owner shall not 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 estimated cost to the Owner of all elements of the Project designed or specified by the Architect 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 bey 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 condi- tions 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 responsibility of the Owner as provided in Article 4 PAGE 12 5 2 RESPONSIBILITY FOR CONSTRUCTION 5 2 1 Evaluations of the Owner's Project budget, pre- liminary estimates of Construction Cost and detailed estimates of Construction Cost, if any, prepared by the Architect, repre- sent 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 Con- tractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices 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 limits 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 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 or Negotiation Phase has not com- menced within ninety (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 5 2 4 If a fixed limit of Construction Cost (adjusted as provided in Subparagraph 5 2 3) is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall 1 give written approval of an increase in such fixed limit, 2 authorize rebidding or renegotiating of the Project within a reasonable time, 3 if the Project is abandoned, terminate in accordance with Paragraph 7 3, or PAGE 13 4 cooperate in revising the Project scope and quality as required to reduce the Construc- tion Cost 5 2 5 If the Owner chooses to proceed under Clause 5 2 4 4 the Architect, without additional charge, shall modify the Con- tract Documents as necessary to comply with the fixed limit, if established as a condition of this Agreement The modification of Contract Documents shall be the limit of the Architect's responsibility arising out of the establishment of a fixed limit The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6 1 The Drawings, Specifications and other documents pre- pared by the Architect for this Project are instruments of the Architect'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 repro- ducible copies, of the Architect's Drawings, Specifications and other documents for information and reference in connection with the Owner's use and occupancy of the Project The Architect's Drawings, Specification 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 the Architect is in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect 6 2 Submission or distribution of documents to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publica- tion in derogation of the Architect's reserved rights ARTICLE 7 TERMINATION, SUSPENSION OR ABANDONMENT 7 1 This Agreement may be terminated by either party upon not less than seven days written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination PAGE 14 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 to provide for expenses incurred in the interruption and resumption of the Architect's services 7 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 Archi- tect 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 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 payment in full is received by the Architect 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, 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 Architect, the Architect shall be compensated for services properly performed prior to termination ARTICLE 8 MISCELLANEOUS PROVISIONS 8 1 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 this Agreement 8 3 The Owner and Architect, respectively, bind them- selves, their partners, successors, assigns and legal represen- tatives 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 PAGE 15 Neither Owner nor Architect shall assign this Agreement without the written consent of the other 8 4 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 may be amended only by written instrument signed by both Owner and Architect 8 5 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect 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 form 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 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 considered by the Owner to be confi- dential 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 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 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 PAGE 16 9 2 REIMBURSABLE EXPENSES 9 2 1 Reimbursable Expenses are in addition to compensa- tion for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and con- sultants 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 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 2 1 5 Expense of additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally carried by the Archi- tect and Architect's consultants 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 estab- lished 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 Con- struction 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) the lowest bona fide bid or negotiated proposal, 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 PAGE 17 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 ACCOUNTING 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 copying during regular business hours for three years after the date of the final Certificate of Payment ARTICLE 10 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows 10 1 BASIC 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 six (6%) percent of the construction cost based upon the construction contract 10 1 2 Progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable Schematic Design Phase fifteen percent (15%) Design Development Phase twenty percent (20%) Construction Documents Phase forty percent (40%) Bidding or Negotiation Phase five percent (5%) Construction Phase twenty percent (20"/) Total basic Compensation one hundred percent (100%) PAGE 18 10 2 COMPENSATION FOR ADDITIONAL SERVICES 10 2 1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 2 2, compensation shall be computed as follows On an hourly rate basis, based on Article 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 $45 00 per hour Other Employees 2 5 X hourly rate 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 one and one-half (1 5) times the amounts billed to the Architect for such services 10 3 REIMBURSABLE EXPENSES 10 3 1 FOR REIMBURSABLE EXPENSES, as described in Para- graph 9 2, and any other items included in Article 11 as Reimbursable Expenses, a multiple of one and one-half (1 5) 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 within twelve (12) months of the date 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 3 and 10 2 2 10 4 2 Payments are due and payable thirty (30) days from the date of the Architect's invoice Amounts unpaid thirty (30) days after the invoice date shall bear interest at the rate of one percent (lx) per month PAGE 19 ARTICLE 11 OTHER CONDITIONS OR SERVICES (Insert descriptions of other services, identify Additional Services included within Basic Compensation and modificatwns to the payment and compensation terms included in this Agree m ent ) This agreement entered into as of the day and year first written above CITY OF DENTON, TEXAS, OWNER THE ARCHITECTURAL COLLECTIVE INC , ARCHITECTS BY v~ o~ BY RA S ENS, MAYOR ATTEST J L ERS, CITY SECRETARY AP ROVED AS TO LEGAL FORM DEBRA ADAMI DRAYOVITCH, CITY ATTORNEY BY V &!G350 ~ 7PAGE 20