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HomeMy WebLinkAboutRES 97-296 RESOLUTION NO. � BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute a professional services contract with Architectural Alliance, Inc. of Beaumont for architect and engineering services to design a new Alice Keith Park Pool Facility. The contract is substantially in the form attached hereto as Exhibit "A" . PASSED BY THE CITY COUNCIL of the City of Beaumont this the/-f day of 1997. - Mayor - AGREEMENT FOR ARCHITECTURAL SERVICES This Agreement made as of the day of , 1997 between the City of Beaumont, Texas, hereinafter referred to as "Owner", and Architectural Alliance, Incorporated, hereinafter referred to as "Architect" for the following Project: Development and construction of Alice Keith Park Pool Facility, City of Beaumont, Texas, hereinafter referred to as "Project". 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 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 expeditiously as is consistent with a high degree of professional skill, care, and diligence practiced by Architects of Jefferson County and the orderly progress of the Work. The term "high degree of professional skill" shall not be construed as perfection, but shall mean that degree of care and skill ordinarily exercised by the architectural profession currently practicing under similar circumstances. 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 to both parties. 1.1.3 The services covered by this Agreement are subject to the time limitations contained in Subparagraph 10.4.1. 1 EXHIBIT "A" 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 necessary to produce a set of Construction Documents, which will be sufficient and adequate to fulfill the purposes of this project (see 2.3.1), 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 alternative approaches to design and construction of the Project. 2.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with 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 establishes an elapsed time factor for the period of time from the commencement to the completion of construction. 2 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 applicable laws, statutes, ordinances, codes and regulations. If any such laws, statutes, ordinances, codes or regulations are in conflict with one another, Architect must consult with Owner. Notwithstanding Owner's approval of the documents, Architect will provide Documents and specifications which 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. 2.3.3 The Architect shall provide the owner with an analysis of the estimated operating costs of the completed project. 2.3.4 Providing interior design and similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment. 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. If any such laws, statutes, ordinances, codes or regulations are in conflict with one another, Architect must consult with Owner. 2.4.2 The Architect shall, with assistance of the Owner, prepare the necessary bidding information, bidding forms, the Conditions of the contract, and the form of Agreement between the Owner and contractor, and other required bidding documents necessary to provide the Owner a completed bid docurnIM.t. 3 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 other governmental authorities having jurisdiction over the Project. 2.5 BIDDING 2.5.1 The Architect, following the Owner's Approval of the Construction Documents and of the latest preliminary detailed estimate of Construction Cost, shall assist the Owner in obtaining bids and assist in awarding and preparing contracts for construction. 2.5.2 If the lowest bid for the construction of the Project exceeds the total construction cost of the Project as set forth in the approved Detailed Statement of Probable Construction Costs of the Project submitted by the Architect, then the Architect, at its sole cost and expense, will revise the Construction Documents in a continuous fashion so that they are completed in a timely manner as may be required by the Owner 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 completion of the one (1) year warranty period. 2.6.2 The Architect shall provide 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 or approved by the City. 2.6.3 Construction Phase duties, responsibilities and limitations of authority of the Architect shall not be restricted, modified or extended without written agreement of the Owner and Architect. 4 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 visit the construction site at least two times a week, regardless of whether construction 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 care and diligence in discovering and promptly reporting to the Owner any observed defects or deficiencies in the work of Contractor or any subcontractors. The Architect represents that he will follow professional standards as described in 1.1.2 herein in performing all Services under this Agreement. The Architect shall promptly correct any defective designs or specifications furnished 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. 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, but shall have no responsibility for jobsite safety. 2.6.8 Except as may otherwise be provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Architect. Communications by and with the Architect's consultants shall be through the Architect. 2.6.9 Based on the Architect's observations at the site of the work any evaluations of the Contractor's Applications for Payment,, the !.,rchitect shall review and certify the amounts due the Contractor. 5 2.6.10 The Architect's certification for payment shall constitute 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. 2.6.11 The Architect shall have the authority to reject Work which does not conform to the Contract Documents and shall consult with Owner. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to recommend to the Owner 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 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) determining compliance with applicable laws, statutes, ordinances and codes; and (2) determining whether or not the Work will be in compliance with the requirements of the Contract Documents. The Architect shall act with such reasonable promptness to cause no delay in the Work or in the construction of the Owner or of sepa- rate 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 Contractor to the extent required by the Contract Documents. The Architect's review shall not constitute review or approval e:'L` safety precautions, nor of construction means, methods, techniques, sequences or 6 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 Contract for Construction to be assembled by the Contractor and shall issue a final certificate for Payment upon compliance with the requirements of the Contract Documents. 2.6.15 The Architect shall interpret and provide recommendations on matters concerning performance of the Owner and Contractor under the requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made with reasonable promptness and within any time 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 form of drawings. When making such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by both Owner and Contractor, and shall not be liable for results or interpretations or decisions so rendered in good faith in accor- dance 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. 7 2.6.18 The Architect (1) shall render services under the Agreement in accordance with the professional standards as described in paragraph 1.1.2 herein; and (2) 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 (1) set of reproducible prints showing all significant changes to the Construction Documents during the Construction Phase. Drawings shall indicate significant changes in the Work made during construction based on marked-up prints, drawings and other data furnished by the Contractor to the Architect. 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 11, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services. The services described under Paragraphs 3.2 and 3.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Paragraph 3.3 are required due to circumstances beyond the Architect's control, the Architect shall notify the Owner prior to 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 Additional Services only if they are not required due to the negligence br 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. 8 3.2.2 Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compensated therefore 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. 3.3 CONTINGENT ADDITIONAL SERVICES 3.3.1 Malting material revisions in Drawings, Specifications or other documents when such revisions are: 3.3.1.1 inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget: 3.3.1.2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents, or 3.3.1.3 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 2.5.2. 3.3.3 The Architect shall provide documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase. 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, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 3.3.6 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Architect is party thereto. 9 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 authorities 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 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 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 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 3.4.11 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 other than as provided in Section 2.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 3.4.13 Providing services of consultants for other than architectural, structural, mechanical and electrical engineering portions of the PA-)Ject provided as a part of Basic Services. 10 3.4.14 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. ARTICLE 4 OWNER'S RESPONSIBILITIES 4.1 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, 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 contingencies related to all of these costs. 4.3 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. 4.4 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 fines of streets, alleys, pavements and adjoining property; adjacent drainage; rights-of-way, flood plains restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements; and information concerning available public utility services and lines, both public and private, above and below grade, including inverts and depths. 4.5 The Owner shall furnish the services of geotechnical engineers when such services are requested by the Architect and agreed to by the Owner. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials and hazardous materials storage, ground corrosion and resistivity tests, including necessary operations for anticipating sub-soil conditions, with reports and appropriate professional recommendations. 11 4.6 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. 4.7 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. 4.8 The services, information, surveys and reports required by Paragraphs 4.5 through 4.7 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. 4.9 The Owner shall give prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 4.10 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 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 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. 12 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. 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 Construction 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 permitted to include contingencies for design, bidding and price escalation, 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. 13 ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 6.1 The Drawings, Specifications and other documents prepared 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 reproducible 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, 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 Beaumont. 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 publication in derogation of the Architect's reserved rights. ARTICLE 7 TERMINATION, 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 Architect. Owner may 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. All plans, field surveys, and other data related to the Project shall become property of the Owner upon termination of the Agreement and paragraph 6.1 shall not apply and they 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. 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 Architect 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 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 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 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 Ownct nor Architect shall assign this Agreement without the written consent of the other. 15 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 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, Architect shall have the responsibility to and shall report to the Owner the location of any hazardous material that an architect of 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 confidential or proprietary. The Owner shall provide professional credit for the Architect on the construction sign and in the promotional materials for the Project. ARTICLE 9 PAYMENTS TO THE ARCHITECT 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. 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. 16 9.2.1.1 Expenses in connection with authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. 9.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subparagraph 2.6.19), postage and handling of Drawings, Specifications and other documents. 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 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 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions, in accordance with the schedule set forth in Subparagraph 10.2.2 based on 0) 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. Such charges shall be included as a separate item on the Architect's statement for Basic Services. 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 ccitractors, or on account of the cost of changes in the Work other than those for which the Architect is responsible. 17 9.6 ARCHITECT'S ACCOUNTING RECORDS 9.6.1 Architect shall make available to Owner or Owner's authorized representative records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed on the basis of a multiple of Direct Personnel Expense for inspection and copying during regular business hours for three years after the date of the final Certificate of Payment, or until any litigation related to the Project is final, whichever date is later. ARTICLE 10 BASIS OF COMEPENSATION 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 as follows: Seven Percent (7%) of the construction cost 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 15% • Design and Development Phase 20% • Construction Documents Phase 30% • Bidding Phase or Negotiating Phase 10% • Construction Phase 25 • Total Basic Compensation 100% 10.2 COMPENSATION FOR ADDITIONAL SERVICES 10.2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 3.2, there shall be no additional compensation. 10.2.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 3 and 11, other than (1) Additional Project Representation, as 18 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 no additional fee. 10.2.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical, electrical, and civil engineering and landscape design ser- vices and those provided under Subparagraph 3.4.14 or identified in Article 11 as part of Additional Services, a multiple of 0 times the amounts billed to the Architect for such services. 10.3 REIMBURSABLE 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 0 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 Payments are due and payable thirty (30) days from the date of receipt of the Architect's invoice. Amounts for services properly performed which remain unpaid sixty (60) days after the invoice date,shall bear interest at the rate of one (1%) percent per month. ARTICLE 11 OTHER CONDITIONS OR SERVICES 11.1 Architect shall maintain, at no expense to Owner, a professional liability (errors and omissions) insurance policy placed with a company rated at least B+/X by Best's Key Rating Guide, authorized to do business in Texas, in an amount not less than one million dollars ($1,000,000). Such policy shall require the giving of written notice to Owner at least thirty days prior to cancellation or non-renewal of any policies . In addition, Architect shall furnish Owner with copies of said policies or certificates as indicated in Attachment "B" . 11.2 Architect agrees to indemnify and hold harmless the City, its officers and employees from and against any and all claims or suits for injuries, including death, damages, costs (including reasonable attorneys' fees and court costs), loss, or liability and expressly including the vicarious liability of the City, arising out of or in connection with the performance of those services contemplated by this agreement, but only to the extent or degree on a comparative basis of fault arising from the negligent acts, errors or omissions of Architect, its officers, agents and employees. 19• This Agreement entered into as of the day and year first written above. CITY OF BEAUMONT, TEXAS ARCHITECTURAL ALLIANCE, INC. BY: BY: RAY A. RILEY, CITY MANAGER J. ROB CLARK, A.I.A. BY: PAUL N. HAY, A.I.A. 20