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HomeMy WebLinkAboutResolution - 2009-R0237 - Agreement - Kirkpatrick Architecture Studio - Auditorium Renovations - 06/23/2009Resolution No. 2009-RO237 .Tune 23, 2009 Item No. 5.7 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Professional Services Agreement (Contract No. 8905) between the City of Lubbock and Kirkpatrick Architecture Studio to provide architectural services for the auditorium renovations, and related documents (RFQ-09-713-DD). Said Professional Services Agreement is attached hereto and incorporated in this Resolution as if fully set forth herein and shall be included in the minutes of the Council. Passed by the City Council this 23rd day of Rebe ca Garza, City Secre ary APPROVED AS TO CONT NT: Freddy Chav , Civic Center ;o:r� APPROVED AS TO FORM: Attorney gslAgreement-Professional Servs-Kirkpatrick Architecture_ res 6.2.2009 June 2009. ;;"/o� - TOM MARTIN, MAYOR Resolution No. 2009-RO237 PROFESSIONAL SERVICES AGREEMENT This Professional Services Agreement ("Agreement") is entered into this 23rd day of June, 2009, by and between the City of Lubbock ("CITY"), and Kirkpatrick Architecture Studio ("Architect") WITNESSETH WHEREAS, the Architect has skill, resources, and experience in development of plans and specifications for renovations of existing facilities, and is qualified to perform such activities (the "Activities"); NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the CITY and Architect agree as follows: ARTICLE I Services 1.01 Architect shall conduct all activities and within such time frames, as set forth on Exhibit "A", "Scope of Services", attached hereto (the "Services") ARTICLE H Compensation and Term 2.01 The consideration to be paid for the Services to be provided the CITY as described in Article I shall be on a percentage of the final construction cost basis, as set forth in Exhibit "A". This amount shall be invoiced to the CITY monthly as work is performed. 2.02 The CITY may terminate this Agreement by providing written notice to Architect at least thirty (30) days prior to the effective date of termination as provided in such notice. In the event this Agreement is so terminated, the CITY shall pay Architect only for services Professional Services Agreement -- COL/Kirkpatrick Page 1 of 8 actually performed by Architect up to and including the date the Architect is deemed to have received the CITY's notice of termination. 2.03 Parties acknowledge and agree that in no case shall total payments from the CITY under this Agreement exceed THREE HUNDRED, NINETY THOUSAND AND NO/100 DOLLARS ($390,000.00). The Parties further acknowledge and agree that no payment shall be due or be made that would cause or otherwise result in a violation of the terms and conditions of the underlying federal or state grants, or a violation by the CITY of any existing federal or state law. ARTICLE III Independent Contractor 3.01 It is understood and agreed that Architect is to perform the Services in a sound and professional manner and exercising the degree of care, skill, and diligence in the performance of the Services as is exercised by a professional under similar circumstances. Further, Architect is and shall be considered at all times an independent contractor under this Agreement and/or in its service, hereunder. During the performance of the Services under this Agreement, Architect and Architect's employees will not be considered, for any purpose, employees or agents of the CITY within the meaning or the application of any federal, state or local law or regulation, including without limitation, laws, rules, or regulations regarding or related to unemployment insurance, old age benefits, workers compensation, labor, personal injury, or taxes of any kind. ARTICLE IV Events of Default/Remedies Professional Services Agreement — COUKirkpatrick Page 2 of 8 4.01 CITY's Defaults/Architect's Remedies. In the event the CITY shall default in the performance of any term or provision of this Agreement for any reason other than failure by Architect to perform hereunder, Architect may, if said default shall be continuing after five (5) days notice of such default is deemed received by the CITY, exercise any right or remedy available to it by law, contract, equity, or otherwise. Architect's Defaults/CITY'S Remedies. In the event Architect shall default in the performance of any term or provision of this Agreement for any reason other than failure by the CITY to perform hereunder, the CITY may, if said default shall be continuing after five (5) days notice of such default is deemed received by Architect, exercise any right or remedy available to it by law, contract, equity, or otherwise, including without limitation, specific performance and/or the right to terminate this Agreement without additional notice. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. ARTICLE V Miscellaneous 5.01 Architect shall comply with all applicable laws, statutes, regulations, ordinances, rules, and any other legal requirement in effect as of the date of issuance of the construction documents. 5.02 Any notice required by this Agreement shall be deemed to be properly served, if (i) provided in person or by telephonic facsimile; or (ii) deposited in the United States mail by certified letter, return receipt requested, addressed to the recipient at recipient's address shown below, subject to the right of either party to designate a different address by notice given in the manner just described. Notice shall be deemed to be received Professional Services Agreement — COL/Kirkpatrick Page 3 of 8 when delivered if provided in person or by telephonic facsimile or, if deposited in the United States mail, as set forth above, three (3) days after depositing such notice in the United States mail, as set forth above. For CITY: Freddy Chavez, Civic Services Director 1501 Mac Davis Lane Lubbock, Texas 79401 Facsimile: (806) 775-3240 wf copy to: City Attorney P.O. Box 2000 Lubbock, Texas 79457 Facsimile: (806) 775-3307 For Architect: James R. Kirkpatrick, President Kirkpatrick Architecture Studio 100 West Mulberry Street Denton, TX 76201 Facsimile: (940) 383-0262 5.03 THIS AGREEMENT IS TO BE CONSTRUED UNDER TEXAS LAW WITHOUT REGARD TO CONFLICT OF LAW RULES THAT WOULD DIRECT APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. THE OBLIGATIONS OF THE PARTIES CREATED BY THIS AGREEMENT ARE PERFORMABLE, AT LEAST IN PART, IN LUBBOCK COUNTY, TEXAS. VENUE FOR ANY ACTION BROUGHT PURSUANT TO THIS AGREEMENT, OR ACTIVITY CONTEMPLATED HEREBY, SHALL EXCLUSIVELY BE IN LUBBOCK COUNTY, TEXAS. 5.04 This Agreement represents the entire and sole agreement between the CITY and Architect with respect to the subject matter hereof and supersedes any and all prior Professional Services Agreement — COL/Kirkpatrick 'Page 4 of 8 negotiations, understandings, representations or other agreements, whether written or oral. This Agreement may not be modified or amended except in writing and duly executed by each party hereto. 5.05 Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership or principal — agent relationship between Architect and the CITY. 5.06 If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary to render it valid and enforceable so long as said modification is reasonably within the intent the parties as originally expressed. In the event such provision may not be so modified, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in force and effect as if such provision had not been included in this Agreement. 5.07 Any and all final documents, drawings and specifications prepared by Architect as part of the Services hereunder, shall become the property of the CITY when Architect has been compensated as set forth in Section 2.01, above. The City acknowledges the Architect's construction documents, including electronic files, as the work papers of the Architect and the Architect's instruments of professional service. Nevertheless, the final construction documents prepared under this Agreement shall become the property of the City upon completion of the services and payment in full of all monies due to the Architect. The City shall not reuse or make any modification to the construction documents without the prior written authorization of the Architect. The City agrees, to the fullest extent permitted by law, to defend, indemnify and hold harmless the Architect, its officers, directors, employees and subcontractors (collectively, Architect) against any Professional Services Agreement — C©LIKirkpatrick Page 5 of 8 damages liabilities or costs, including reasonable attorneys' fees and defense costs, arising from or allegedly arising from or in any way connected with the unauthorized reuse or modification of the construction documents by the City or any person or entity that acquires or obtains the construction documents from or through the City without the written authorization of the Architect. Under no circumstances shall the transfer of ownership of the Architect's drawings, specifications, electronic files or other instruments of service be deemed a sale by the Architect, nor shall such transfer be construed or regarded as any waiver or other relinquishment of the Architect's copyrights in any of the foregoing, full ownership of which shall remain with the Architect, absent the Architect's express prior written consent. 5.08 A waiver by either CITY or Architect of a breach of this Agreement must be in writing to be effective. In the event either party shall execute and deliver such waiver, such waiver shall not affect the waiving parry's rights with respect to any other or subsequent breach. 5.109 Neither CITY nor Architect may assign this Agreement, in whole or in part, without the written consent of such assignment by the non -assigning party. CITY and. Architect each bind itself or himself, their legal representatives and permitted assigns in respect to all provisions of this Agreement. 5.10 Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than CITY and Architect. 5.11 Architect represents and warrants to CITY that it has taken all actions necessary to authorize the party executing this Agreement to bind, in all respects, Architect to all Professional Services Agreement — GQLIKirkpatrick Page 6 of 8 terms and provisions of this Agreement, and that such person possesses authority to execute this Agreement and bind Architect hereto. 5.12 To the extent of any conflict between the terms and conditions set forth in this Agreement, and the terms and conditions set forth in the Exhibit thereto, the Parties agree that the terms and conditions set forth in the Agreement shall prevail. IN WITNESS WHEREOF, the parties have executed this Agreement by their duly authorized representatives as of the date first written above. CITY OF LUBBOCK Tom Martin, Mayor ATTEST: Rebec a Garza, City Secretary AS TO CONTENT: Freddy Cha z, Civic Servic irector KIRKPAT K ARCHITECTURE STUDIO �Jam.es. Kirkpatrick, President Kirkpatrick Architect, Inc. dba Kirkpatrick Architecture Studio Professional Services Agreement — COL/Kirkpatrick Page 7 of 8 Resolution No. 2009-RO237 Scope of Services The following items shall be included in the scope of services for the services to be rendered by Architect pursuant to this Agreement, hereinafter referred to as "Project". Professional Services Agreement — COL/Kirkpatrick Page 8 of 8 Exhibit A Resolution No. 2009-R0237 Scope of Services Scope of Architect's Basic Services 1.1 Definition 1.1.1 The Architect's Basic Services consist of those described in Paragraphs 1.2 through 1.6 and any other services identified in Other Conditions or Services as part of Basic Services, and include without limitation normal civil structural, mechanical -electrical engineering, landscaping services and any other engineering services necessary to produce a complete and accurate set of Construction Documents, as described by and required in Paragraph 1.4 Basic Services do not include copying of bid documents. 1.1.2 The Architect's Basic Services shall include travel expenses required in order to make presentations related to items listed in Paragraphs 1.2 through 1.6 and any other services identified in Other Conditions or Services as part of Basic Services. 1.2 Schematic Design Phase 1.2.1 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 Proj ect. 1.2.2 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 Subparagraph 4.2.1. 1.2.3 The Architect shall review with the Owner alternative approaches to design and construction of the Project. 1.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. The Schematic Design shall contemplate compliance with all applicable laws, statutes, ordinances, codes and regulations. 1.2.5 The Architect shall submit to the Owner a Preliminary Opinion of Probable 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. 1.3 DESIGN DEVELOPMENT PHASE 1.3.1 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 maybe appropriate, which shall comply with all applicable laws, statutes, ordinances, codes and regulations in force at the time of design, consistent with professional skill and care in accordance with standards of the profession. Owner's approval of the documents, shall not constitute a waiver of the Architect's duty to produce Documents and specifications that will be sufficient and adequate to fulfill the purposes of the Project. exhibit A kirkpatrick agreement Page 1 of 14 Exhibit A Scope of Services 1.3.2 The Architect shall advise the Owner of any adjustments to the Preliminary Opinion of Probable Construction Cost in a further Detailed Statement as described in Paragraph 1.2.5. 1.4 CONSTRUCTION DOCUMENTS PHASE 1.4.1 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 all applicable laws, statutes, ordinances, codes and regulations. 1.4.2 The Architect shall advise the Owner of any adjustments to previous Preliminary Opinion of Probable Construction Cost indicated by changes in requirements or general market conditions. 1.4.3 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. This assistance will include taking the project through the Site Plan approval process. 1.5 Bidding 1.5.1 The Architect, following the Owner's approval of the Construction Documents and of the latest Preliminary Opinion of Probable Construction Cost, shall assist the Owner during the bidding phase. This will consist of answering inquiries requested by the purchasing official for the City of Lubbock, evaluating new contractors for responsibility prior to award of the contract, and recommending award or non -award of to the City of Lubbock's purchasing official. 1.5.2 If the lowest bid for the construction of the Project exceeds the total construction cost of the Project as set forth in the approved Preliminary Opinion of Probable Construction Costs of the Project submitted by the Architect, then the owner may, at its sole discretion: 1.5.2.1 give written approval of an increase in the construction cost portion of the project budget; or 1.5.2.2 direct the Architect to make such changes in the Construction Contact Documents to permit re -bidding of the Project within the shortest, reasonable time; or 1.5.2.3 direct the Architect to revise the scope of quality, or both, of the Project, so as to reduce the project construction cost; 1.5.2.4 abandon the Project, in which case the Architect's fee shall be based on the latest budget approved by the Owner. 1.6 CONSTRUCTION PHASE -ADMINISTRATION OF THE CONSTRUCTION CONTRACT 1.6.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction exhibit A_kirkpatrick agreement Page 2 of 14 Exhibit A Scope of Services and terminates at the issuance to the Owner of the final Certificate for Payment, unless extended under the terms of Subparagraph 8.3.2. 1.6.2 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. 1.6.3 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. 1.6.4 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. 1.6.5 The Architect shall make observations at the construction site at least two times a month, regardless of whether construction is in progress, to become generally familiar with the progress and quality of the Work completed and to determine in general 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 summarizing construction progress and on-site observations on a weekly basis. On the basis of onsite observations, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall exercise reasonable and prudent standard of architectural practice care and diligence to discover and report to the Owner defects or deficiencies in the work of Contractor or subcontractors, which are reasonably discoverable with the exercise of due diligence. The Architect shall in a reasonably prudent manner correct 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. 1.6.6 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 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. 1.6.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress. 1.6.8 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. 1.6.9 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. exhibit A kirkpatrick agreement Page 3 of 14 Exhibit A Scope of Services 1.6.10 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 1.6.5 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. 1.6.11 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 Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work is fabricated, installed or completed. However, neither 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. 1.6.12 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 limited purpose of checking for conformance with the requirements of the Contract Documents. The Architect shall act with such reasonable promptness to cause no delay in the Work or in the construction of the Owner or of separate contractors, while allowing sufficient time in the 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 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. 1.6.13 The Architect shall prepare Change Orders and Construction Change Directives, with supporting documentation and data if deemed necessary by the Architect as provided in Sub- paragraphs 2. 1.1 and 23.3, for the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor changes in the exhibit A_kirkpatrick agreement Page 4 of 14 Exhibit A Scope of Services 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. 1.6.14 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. 1.6.15 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. 1.6.16 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 accordance with all the provisions of this Agreement and in the absence of negligence. 1.6.17 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. 1.6.18 The Architect (1) shall render services under the Agreement in accordance with the normal customary professional standards prevailing in the Lubbock area; (2) will reimburse the Owner for all damages caused by the negligence of the Architect; 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. 1.6.19 At the completion of the project, the Architect shall provide the Owner with [1] set(s) of "as built" and reproducible prints showing all significant changes to the Construction Documents made during the Construction Phase. ADDITIONAL SERVICES 2.1 GENERAL 2.1.1 The services described in this Article 2 are not included in Basic Services unless so identified in Article la, 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 2.2 and 2.4 shall only be provided if authorized or confirmed in writing by the Owner. If services described under Contingent Additional Services in Paragraph 2.3 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 2.3 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 exhibit A_kirkpatrick agreement Page 5 of 14 Exhibit A Scope of Services Architect shall have no obligation to provide those services. Owner will be responsible for compensating the Architect for Contingent Additional Services only if they are not required due to the negligence or fault of Architect. 2.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES 2.2.1 If more extensive representation at the site than is described in Subparagraph 1.6.5 is required, the Architect shall provide one or more Project Representatives to assist in carrying out such additional on-site responsibilities. 2.2.2 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. 2.3 CONTINGENT ADDITIONAL SERVICES 2.3.1 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. 2.3.2 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 1.5.2. 2.3.3 Preparing Drawings, Specifications and other documentation and supporting data, and providing other services in connection with Change Orders and Construction Change Directives, only if changes are not as a result of work performed by Architect. 2.3.4 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. 2.3.5 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. 2.3.6 Providing services in evaluating an extensive number of claims submitted by the Contractor or others in connection with the Work. 2.3.7 Providing services in connection with a public hearing, arbitration proceeding or legal proceeding except where the Architect is party thereto. 2.3.8 Preparing documents for alternate, separate or sequential bids or providing services in connection with bidding or construction prior to the completion of the Construction Documents Phase. 2.4 OPTIONAL ADDITIONAL SERVICES exhibit A_kirkpatrick agreement Page 6 of 14 Exhibit A Scope of Services 2.4.1 Providing financial feasibility or other special studies. 2.4.2 Providing planning surveys, site evaluations or comparative studies of prospective sites. 2.4.3 Providing special surveys, environmental studies and submissions required for approvals of governmental authorities or others having jurisdiction over the Project. 2.4.4 Providing services relative to future facilities, systems and equipment. 2.4.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof. 2.4.6 Providing services to verify the accuracy of drawings or other information furnished by the Owner. 2.4.7 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. 2.4.8 Providing services in connection with the work of a construction manager or separate consultants retained by the Owner. 2.4.9 Providing detailed quantity surveys or inventories of material, equipment and labor. 2.4.10 Providing analyses of owning and operating costs. 2.4.11 Malting investigations, inventories of materials or equipment, or valuations and detailed appraisals of existing facilities. 2.4.12 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. 2.4.13 Providing services other than as provided in Section 1.6.4, after issuance to the Owner of the final Certificate for Payment and expiration of the Warranty period of the Contract for Construction. 2.4.14 Providing services of consultants for other than architectural, structural, mechanical and electrical engineering portions of the Project provided as a part of Basic Services. 2.4.15 Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice. 2.4.16 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 specified in Section 1.6.19.) OWNER'S RESPONSIBILITIES 3.1 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, expendability, special equipment, systems and site requirements, as more specifically described in Paragraph 1.2.1. 3.2 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. 3.3 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. exhibit A kirkpatrick agreement Page 7 of 14 Exhibit A Scope of Services 3.4 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. 3.5 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 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. 3.6 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 anticipating sub -soil conditions, with reports and appropriate professional recommendations. 3.6.1 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 its Basic Services. 3.7 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. At the City's discretion it may perform, or may have services performed by others, i.e. geotechnical studies, feasibility studies, or environmental studies. Any and all reports provided by such services to the Architect shall be utilized as directed by the City of Lubbock. The City of Lubbock takes no responsibility for the information provided from such services. 3.8 The Owner shall furnish all legal, accounting and insurance counscling 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. 3.9 The services, information, surveys and reports required by Paragraphs 3.5 through 3.8 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. 3.10 The Owner shall give prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents. 3.11 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. CONSTRUCTION COST 4.1 DEFINITION exhibit A_kirkpatrick agreement Page 8 of 14 Exhibit A Scope of Services 4.1.1 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. 4.1.2 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. 4.1.3 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 3. 4.2 RESPONSIBILITY FOR CONSTRUCTION COST 4.2.1 Evaluations of the Owner's Project budget, Preliminary Opinion of Construction Cost and Opinion 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. 4.2.2 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. 4.2.3 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. USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 5.1 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 exhibit A_kirkpatrick agreement Page 9 of 14 Exhibit A Scope of Services 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 Lubbock. 5.2 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. TERMINATION, SUSPENSION OR ABANDONMENT 6.1 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. 6.3 This Agreement maybe 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. 6.4 Failure of the Owner to make payments to the Architect in accordance with this Agreement shall be considered substantial nonperformance and cause for termination. 6.5 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. 6.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services properly performed prior to termination. MISCELLANEOUS PROVISIONS 7.1 This Agreement shall be governed by the laws of the State of Texas. 7.2 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. 7.3 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. 7.4 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 maybe amended only by written instrument signed by both Owner and Architect. 7.5 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. exhibit A_kirkpatrick agreement Page 10 of 14 Exhibit A Scope of Services 7.6 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, polychlorinated biphenyl (PCB) or other toxic substances. 7.7 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. PAYMENTS TO THE ARCHITECT 8.1 DIRECT PERSONNEL EXPENSE 8.1.1 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. 8.2 REIMBURSABLE EXPENSES 8.2.1 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. 8.2.1.1 Expense in connection with authorized out -of -county travel; and fees paid for securing approval of authorities having jurisdiction over the Project. 8.2.1.2 Expense of reproductions (except the reproduction of the sets of documents referenced in Subparagraph 1.6.19), postage and handling of Drawings, Specifications and other documents. 8.2.1.3 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. 8.2.1.4 Expense of renderings, models and mock-ups requested by the Owner. 8.2.1.5 Reimbursable expenses for 8.2.1.1 and 8.2.1.2 shall not exceed $20,000.00. 8.3 PAYMENTS ON ACCOUNT O BASIC SERVICES 8.3.1 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 9.2.2. 8.3.2 If and to the extent that the time initially established in Subparagraph 9.4.1 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 9.2.2. 8.3.3 When compensation is based on a percentage of Construction Cost and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those exhibit A_kirkpatrick agreement Page 11 of 14 Exhibit A Scope of Services portions, in accordance with the schedule set forth in Subparagraph 9.2.2 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. 8.4 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 8.4.1 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. 8.5 PAYMENTS WITHHELD 8.5.1 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. 8.6 ARCHITECT'S ACCOUNTING RECORDS 8.6.1 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. BASIS OF COMPENSATION The Owner shall compensate the Architect as follows: 9.1 BASIC COMPENSATION 9.1.1 FOR BASIC SERVICES, as described in Article 1, and any other services included in Article 10 as part of Basic Services, Basic Compensation shall be eight percent (8.25%) of the cost of construction, but not to exceed $370,000.00. 9.1.2 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 40% Bidding Phase 5% Construction Phase 20% Total Basic Compensation 100% 9.2 COMPENSATION FOR ADDITIONAL SERVICES 9.2.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 2.2, compensation shall be computed at the hourly rates set forth in section 9.2.2 below. 9.2.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Articles 2 and 10, other than (1) Additional Project Representation, as described in Paragraph exhibit A_kirkpatrick agreement Page 12 of 14 Exhibit A Scope of Services 2.2, and (2) services included in Article 10 as part of Additional Services, but excluding services of consultants, compensation shall be computed as follows: Principals $ 150.00 per hour Associates $ 110.00 per hour Technical Staff $ 75.00 per hour Clerical Staff $ 65.00 per hour 9.2.3 FOR ADDITIONAL SERVICES OF CONSULTANTS, including additional structural, mechanical and electrical engineering services and those provided under Subparagraph 2.4.16 or identified in Article 10 as part of Additional Services, a multiple of 1.05 times the amounts billed to the Architect for such services. 9.3 REIMBURSABLE EXPENSES 9.3.1 FOR REIMBURSABLE EXPENSES, as described in Paragraph 8.2, and any other items included in Article 10 as Reimbursable Expenses will be reimbursed at actual expenses incurred by the Architect, the Architect's employees and consultants in the interest of the Project. 9.4 ADDITIONAL PROVISIONS 9.4.1 IF THE BASIC SERVICES covered by this agreement have not been completed within Twenty-four months of the date of execution hereof, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as provided in Subparagraphs 8.3.2 and 9.2.2. 9.4.2 Payments are due and payable fifteen (15) days from the date of the Architect's invoice. Amounts for services properly performed which remain unpaid sixty (60) days after the invoice date shall bear interest at the rate of one (1 %) percent per month. OTHER CONDITIONS OR SERVICES 10.1 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, nonrenewal of any policies, evidenced by return receipt of United States Certified Mail. Architect shall furnish Owner with copies of said policies or certificates evidencing such coverage. 10.2 Architect agrees to indemnify and save and hold harmless, the City, its officers, representatives, and employees from and against, damages arising out of or in connection with the performance by the Architect of those services contemplated by this Agreement, arising out of negligent acts or omissions of Architect, its officers, employees, consultants and subcontractors. 10.3 Architect shall procure Worker's Compensation Insurance protecting the agents and employees of Architect or subconsultant. All Worker's Compensation coverage shall include a waiver of subrogation in favor of City of Lubbock. 10.4 Architect shall provide the following additional services that are not a part of the basic services upon request of the Owner: exhibit A_kirkpatrick agreement Page 13 of 14 Exhibit A Scope of Services 1. American Disability Act Certification per State Requirements (estimated cost is $1,200) 2. Bid documents beyond construction documents provided for in section 1.4.1. exhibit A kirkpatrick agreement Page 14 of 14