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R-05-07-14-11F1 - 7/14/2005 RESOLUTION NO. R-05-07-14-11F1 WHEREAS, the City of Round Rock desires to retain professional architectural services for the design of Fire Station #7, and WHEREAS, K.A. Hickman Architects & Interior Designers has submitted a Standard Form of Agreement Between Owner and Architect with Standard Form of Architect' s Services ("Agreement" ) , and Supplemental Agreement No. 1 to provide said services, and WHEREAS, the City Council desires to enter into said Agreement, and Supplemental Agreement No. 1 with K.A. Hickman Architects & Interior Designers, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, That the Mayor is hereby authorized and directed to execute on behalf of the City a Standard Form of Agreement Between Owner and Architect with Standard Form of Architect' s Services ("Agreement") , and Supplemental Agreement No. 1 with K.A. Hickman Architects & Interior Designers for the design of Fire Station #7, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes . The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. @PFDesktop\::ODMA/WORLDOX/O:/WDOX/RESOLUTI/R50714F1.WPD/sc RESOLVED this 14th day of July, 2 5 City of Round Rock, Texas hugA) rnc&P-AWS mayeg PPD-f6m ATTEST: CHRISTINE R. MARTINEZ, City Secr ary 2 Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services AIA Document B141 - 1997 1997 Edition - Electronic Format This document has important legal consequences.Consultation with an attorney is encouraged with respect to its completion or modification. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401. Copyright 1917, 1926, 1948, 1951, 1953, 1958, 1961, 1963, 1966, 1967, 1970, 1974, 1977, 1987, 01997 by The American Institute of Architects. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution. TABLE OF ARTICLES 1.1 INITIAL INFORMATION 1.2 RESPONSIBILITIES OF THE PARTIES 1.3 TERMS AND CONDITIONS 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 1.5 COMPENSATION AGREEMENT made as of the O day of the month of in the year Two Thousand Five. (In words,indicate day,month and year.) BETWEEN the Architect's client identified as the Owner: (Name,address and other information.) City of Round Rock 221 East Main Street Round Rock.Williamson and Travis Counties,Texas 78664 AIA DOCUMENT B141-STANDARD FORM AGREEMENT- 1997 EDITION-AIA-COPYRIGHT 1997-THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S.copyright laws and will subject the violator to legal prosecution.This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format BI41-1997 Page#I 00087956/jkg EXHIBIT 8 nAu and the Architect: (Name,address and other information.) K.A.Hickman Architects and Interior Designers 1517 East Palm Valley Boulevard Round Rock,Texas 78664 For the following Project: (Include detailed description of Project.) Complete Planning civil architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection,document production,bidding-related services,and construction administration services for the following: Facilities to house Round Rock Fire Station#7 to be located in Round Rock,Texas,such facilities to house and support areas of fire operations and service. Professional services for this Proiect shall include Schematic Design Phase, Design Development Phase, Construction Documents Phase, Bidding/Negotiation Phase, Construction Administration Phase, and Warranty Phase services related to the Proiect. The Owner and Architect agree as follows. ARTICLE 1.1 INITIAL INFORMATION 1.1.1 This Agreement is based on the following information and assumptions. (Note the disposition for the following items by inserting the requested information or a statement such as "not applicable,""unknown at time of execution"or"to be determined later by mutual agreement.') Architect shall initially furnish Program Development, Site Analysis,Preliminary Plans and Elevations Development,MEP Systems and Structural Selection, Preliminary Estimate of Probable Costs Development, and Schematic Design for the Project. Architect shall be responsible for Schematic Design Phase, Design Development Phase, Construction Documents Phase, Bidding/Negotiation Phase,Construction Administration Phase,and Warranty Phase. 1.1.2 PROJECT PARAMETERS 1.1.2.1 The objective or use is: (Identify or describe,if appropriate,proposed use or goals.) The securing of Architect's professional services for the planning, engineering and designing of a new three-bay fire station of approximately 6,250 square feet to house and support areas of fire operations and service, and the securing of Architect's professional services for subsequent document production, bidding-related services, and construction administration services. 1.1.2.2 The physical parameters are: (Idents or describe,if appropriate,size,location,dimensions,or other pertinent information,such as geotechnical reports about the site.) Round Rock Fire Station#7 is to be sited on property located in Round Rock,Texas. 1.1.23 The Owner's Program is: (Identify documentation or state the manner in which the program will be developed.) Program Development, Site Analysis, Preliminary Plans and Elevations Development MEP Systems and Structural Selection,Preliminary Estimate of Probable Costs Development,and Schematic Design for the Proiect. Schematic Design Phase, Design Development Phase, Construction Documents Phase, Bidding/Negotiation Phase, Construction Administration Phase,and Warranty Phase. 2 1.1.2.4 The legal parameters are: (Idents pertinent legal information,including,if appropriate,land surveys and legal descriptions and restrictions of the site.) 1.1.2.5 The financial parameters are as follows: 1. Amount of the Owner's overall budget for the Project,including the Architect's compensation,is: Owner's overall budget for the Project is unknown at this time, and is to be developed and approved in coniunction with receipt of information garnered from the performance of this Agreement. Architect's total compensation for delineated services shall not exceed the sum of One Hundred Twenty-two Thousand Four Hundred Fifty and No/100 Dollars ($122,450.00), plus Reimbursable Expenses in an amount not to exceed Ten Thousand and No/100 Dollars($10,000.00). Customary reimbursable expenses include travel,copies,reproductions,presentations telephone postal or courier services and other similar expenses. Schematic Design Phase $ 18,367.50 Design Documents Phase $ 18,367.50 Construction Documents Phase $48,980.00 Bidding/Negotiation Phase $ 6,122.50 Construction Administration Phase $ 30,612.50 TOTAL $122,450.00 Of this not-to-exceed total of$122,450.00,the following breakdown applies: Architectural/Structural/MEP Fees $65,700.00 Civil Engineering Fees $35,750.00 [* Includes Edwards Aquifer Recharge Zone additional fee of$3,500.00. If site selected is not over Edwards Aquifer Recharge Zone,the sum of$3,500.00 will be deducted from the total sum of$122,450.00.] Roofing Consultant Fees $ 7,500.00 Landscape Architect Fees $ 6,000.00 IT Consultant Fees $ 2,500.00 Construction Consultant Fees $ 5,000,00 TOTAL $122,450.00 1.1.2.6 The time parameters are: (Identify,if appropriate,milestone dates,durations or fast track scheduling.) Services hereunder shall commence immediately upon receipt by Architect of this executed Agreement Completion shall be not later than thirty(30)months from date of execution of this Agreement Other time parameters or adiustments to time parameters may be determined at a later date by mutual agreement of the parties hereto. 1.1.2.7 The proposed procurement or delivery method for the Project is: (Identify method such as competitive bid,negotiated contract,or construction management.) Professional services such as architectural planning will be engaged by negotiated contract The general contractor for construction will be selected by competitive bidding or other statutorily-allowed alternate delivery method 3 1.1.2.8 Other parameters are: (Identify special characteristics or needs of the Project such as energy,environmental or historic preservation requirements.) Unknown at this time, 1.1.3 PROJECT TEAM 1.13.1 The Owner's Designated Representatives are: (List name,address and other information) Larry Madsen Liaison Construction Manager 2008 Enterprise Round Rock,Texas 78664 1.13.2 The persons or entities, in addition to the Owner's Designated Representative, who are required to review the Architect's submittals to the Owner are: (List name,address and other information) Jim Nuse City Manager 221 East Main Street Round Rock,Texas 78664 1.133 The Owner's other consultants and contractors are: (List discipline and,if known,identify them by name and address.) 1.13.4 The Architect's Designated Representative is: (List name,address and other information) Keith A.Hickman K.A.Hickman Architects&Interior Designers 1517 East Palm Valley Boulevard Round Rock,Texas 78664 1.13.5 The consultants retained at the Architect's expense are: (List discipline and,if known,identify them by name and address) Architectural Services by K.A.Hickman Architects&Interior Designers Structural Engineering by Fisher Hagood Engineers MEP Engineering by HCE Consulting Engineers Roofing Consulting by Austech Roofing Consultants Landscape Architectural Services by Coleman&Associates Civil Engineering by Fisher Hagood Engineers IT Consulting by Cocom Upon execution of this Agreement, Architect agrees that it will submit to City within ten (10)days a list of all additional consultants it intends to utilize, not previously identified in Architect's proposal delineating their respective tasks All of Architect's consultants shall be subiect to the approval of City,and City reserves the right to reject any consultant. 1.1.4 Other important initial information is: 1.1.5 When the services under this Agreement include contract administration services, the General Conditions of the Contract for Construction shall be the edition of AIA Document A201^i•^ant^s of t-he date o fthis Agreement,„_as fell ...�. as modified between Owner and Contractor. Architect's responsibility to provide services for the construction phase under this Agreement commences with the award of the contract for construction and terminates at the issuance to Owner of the final certificate for payment. Duties responsibilities and limitations of authority of Architect shall not be restricted modified or extended without written agreement of Owner and Architect with consent of Contractor,which consent shall not 4 be unreasonably withheld. Architect consents to the modifications of AIA Document A201, General Conditions of the Contract for Construction,between Owner and Contractor. 1.1.6 The information contained in this Article 1.1 may be reasonably relied upon by the Owner and Architect in determining the Architect's compensation. Both.,a#ies w^ thAt m.,.h :^F^ *:^^. change and in th event, the 0-iAMLw and- the Ar-ehite-eat sh-all negotiate appr-opr-imo adjustments in sehedule, oompensatien and Change in Ssepiiees in ^^^^_a,nee- ,vith Par ,,T.,^h 1.3.3. Owner agrees to negotiate compensation to Architect as Additional Services for time Owner directs Architect to spend at the iobsite beyond the contracted construction period. It is expressly understood and agreed by and between the parties hereto that any alteration in schedule, compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City Council resolution or City Manager action. ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES 1.2.1 Owner and Architect shall fully cooperate with one another to fulfill all of their respective obligations required under this Agreement. Both parties shall endeavor during the full term hereof to maintain good working relationships among all members of the Project team. 1.2.2 OWNER 1.2.2.1 Unless otherwise provided under this Agreement, Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project.Owner shall furnish to the Architect,within 15 days after receipt of a written request,information necessary and relevant for the Architect to evaluate,give notice of or enforce lien rights. 1.2.2.2 Tho I pea-7iedioally update the budget for-the Pr-ejeet,inGluding that pef4ion alleeated for-the Cost of th Cost of the WedE,or-eentingenGies ineluded-in the Averall budget or-a portion of the budget,without the agreemefflt Afthe The Owner shall establish and periodically update the budget for the Project,includingthat hat portion allocated for the Cost of the Work,Owner's other costs,and reasonable contingencies related to all costs. 1.2.23 The Owner's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Owner's behalf with respect to the Project. The Owner or the Owner's Designated 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. 1.2.2.4 The Owner shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize the Architect to furnish them as a Change in Services when such services are requested by the Architect and are reasonably required by the scope of the Project and are approved by Owner. 1.2.2.5 Unless otherwise provided in this Agreement,and if requested in writing,the Owner shall furnish or pay for tests, inspections and reports required by law or the Contract Documents,such as structural,mechanical,and chemical tests,tests for air and water pollution,and tests for hazardous materials. 1.2.2.6 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. 1.2.2.7 The Ow" Each party shall provide prompt written notice to the Architect other if the Own either becomes aware of any fault or defect in the Project,including any errors,omissions or inconsistencies in the Architect's Instruments of Service. 1.2.2.8 Owner shall furnish, or direct Architect to obtain at Owner's expense a certified survey of the site giving as required, grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, restrictions easements encroachments,zoning,deed restrictions,boundaries,contours and other data pertaining to existing buildings or adjacent to the site other improvements and trees,and full information as to available service and utility lines both public and private and test borings,pits,reports and soil bearing values and other necessary operations for determining subsoil conditions. 5 1.2.2.9 Owner will furnish building permits without charge. Electrical plumbing and other trade permits will be the responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by Owner and are not to be included by Architect in the specifications for the Project. However, Owner agrees to reimburse Architect the actual costs of review fees associated with Texas Building Accessibility reviews. 1.2.2.10 Owner will provide Architect with miscellaneous items such as the Project Facility Program,two(2)copies of the City of Round Rock General and Supplementary Conditions for Building Construction, Instructions to Bidders, Proposal Forms Wage Rates Contract and Bond Forms Bid Advertisement Form and such other information and materials as may be necessary and practicable for the orderly and expeditious progress of the work and the awarding of the construction contract. To the extent practicable,these documents shall be utilized in the preparation of the construction documents. 1.23 ARCHITECT 1.2.3.1 The services performed by the Architect,Architect's employees and Architect's consultants shall be as enumerated in Article 1.4 and as enumerated elsewhere herein,in attached and accompanying documents,in supplemental documents, and in related documents. 1.23.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. The Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services which initially shall be consistent with the time periods established in Subparagraph 1.1.2.6 and which shall may be adjusted,if necessary and approved by Owner,as the Project proceeds.This schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not,except for reasonable cause,be exceeded by the Architect or Owner. 1.233 The Architect's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Architect's behalf with respect to the Project. 1.2.3.4 The Architect shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such information would violate the law, create the risk of significant harm to the public or prevent the Architect from establishing a claim or defense in an adjudicatory proceeding.The Architect shall require of the Architect's consultants similar agreements to maintain the confidentiality of information specifically designated as confidential by the Owner. 1.23.5 Except with the Owner's knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. 1.23.6 The Architect shall review laws,codes,and regulations applicable to the Architect's services. The Architect shall respond in the design of the Project to requirements imposed by governmental authorities having jurisdiction over the Project. 1.23.7 The Architect shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by the Owner. T io Architect Each party shall provide prompt written notice to the 0,Am other if theme either becomes aware of any errors,omissions or inconsistencies in such services or information. ARTICLE 1.3 TERMS AND CONDITIONS 13.1 COST OF THE WORK 1.3.1.1 The Cost of the Work shall be the total cost or,to the extent the Project is not completed,the estimated cost to the Owner of all elements of the Project designed or specified by the Architect. 1.3.1.2 The Cost of the Work shall include the cost at reasonable current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor,plus a for Contractor's overhead and profit. shall ho:.,..l...lo.l f r-mA flcecet oanditio ns at the time of b,.'1,.ding and f F Ghanges in the Work. 6 1.3.13 The Cost of the Work does not include the compensation of the Architect and the Architect's consultants,the costs of the land,rights-of-way and financing or other costs that are the responsibility of the Owner. 1.3.2 INSTRUMENTS OF SERVICE 1.3.2.1 Drawings, specifications and other documents, including those in electronic form,prepared by the Architect and the Architect's consultants are Instruments of Service for use solely with respect to this Project. The ^`chiwet ^^a 'hW Afehiteet's;0-Affl-s;ult—Ants shall h--a d-e-effi-e-A th R--authers;and-ov.,fleFs 9f th@ir FOSI)e--tilm-I-A-1AS-3;BR-RtS 0-f SeWiic-4-3 And-A All retain all .,.,......o n la:: statut^^'and other fesef-.ed right including^ i&s All Architect's designs and work product under this Agreement including, but not limited to, Tracings, Drawings, Estimates, Specifications Investigations Studies and other documents, completed or partially completed, shall be the property of Owner, to be used as Owner desires without restriction on future use; by execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement,Architect hereby conveys,transfers and assigns to Owner all rights under the Federal Copyright Act of 1976(or any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. Copies may be retained by Architect. Architect shall be liable to Owner for any loss or damage to any such documents while they are in the possession of or while being worked upon by Architect or anyone connected with Architect,including agents employees consultants or subcontractors. All documents so lost or damaged shall be replaced or restored by Architect without cost to Owner. 1.3.2.2 Upon execution of this Agreement, the Architect grants to the Owner a permission to reproduce the Architect's Instruments of Service solely for purposes of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar permission from the Architect's consultants consistent with this Agreement. . to the A r4iteet within seven days of tofmination all originals and reproductions in the Oymef' )ntFol. If and upon the date the Architect is adjudged in default of this Agreement,th@ c F^^^i^^'i^^^RI ShRil hp doemoa umginatoa and the Owner is permitted to authorize other similarly credentialed design professionals to reproduce and,where permitted by law,to make changes,corrections or additions to the Instruments of Service solely for the purposes of completing,using and maintaining the Project. 1.3.23 Exeept for- the lieenses granted in Subpafagraph no odic+ lieense or right shall be deemed granted o implied under this Agreement. The Owner shall not assign,delegate, sublicense,pledge or otherwise transfer any lieense permission granted herein to another party without the prior written agreement of the Architect. However,the Owner shall be permitted to authorize the Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers to reproduce applicable portions of the Instruments of Service appropriate to and for use in their execution of the Work by ??cense gFanted in SibparagFVh T.2.'. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is permitted. not to he een-stpaed as publication in derogation of Ube rese-pie-d-rights of the Afehitevt and the A rehitect's nonsultants of Sepiice for future additionS or-Altewatians to this Projeet or for otheF projects,unless the Ownef Ahwin,,;the prior-wi-itten agreement of the n ehitec=and the n h it t' Ponsultants. Any unauthorized use of the Instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants. 1.3.2.4 Prior to the Architect providing to the Owner any Instruments of Service in electronic form or the Owner providing to the Architect any electronic data for incorporation into the Instruments of Service,the Owner and the Architect shall by separate written agreement set forth the specific conditions governing the format of such Instruments of Service or electronic data,including any special limitations o;lieenses not otherwise provided in this Agreement. 13.2.5 All plans and drawings will be prepared and submitted by Architect to Owner for approval on a minimum 24-inch by 36-inch or maximum 32-inch by 42-inch drafting sheet with all lettering processed in ink or pencil and clearly legible when the sheets are reproduced and reduced to half size. 1.3.2.6 Upon completion of the construction of the Project Architect shall within thirty(30) calendar days following final inspection,deliver to Owner the reproducible Record Drawings and Record Specifications as described supplementally herein. In addition,Architect shall submit originals of all documents listed under Section 1.3.2.1 modified to actual as-built conditions as provided by the General Contractor. Compensation therefor will be at standard hourly rates or re-negotiated as a fixed amount at that time. 7 1.3.2.7 Architect shall have no liability for changes made to the drawings by other architects subsequent to the completion of the Project. Any such change shall be sealed by the architect making that change and shall be appropriately marked to reflect what was changed or modified. 1.33 CHANGE IN SERVICES 1.3.3.1 Change in Services of the Architect, including services required of the Architect's consultants, may be accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in writing, if Subparagraph 1.3.3.2. in the absenee of mutual agreement in"ting,the Ar-ehitee-A sha-11 Polify the Owner-pFier to pmvidiff Bu ch s ep.4 c'es. -1_f the 0-10.4n.Aff de e4fns;th at-al l or a p art e f such Change in S en,i raes i s net required,th e 0Wfl ef shal 1 gi,,e pfeffipt *Aitten notiee to th A A rob iteo,and the Ar-ehiteet shall h ave n a obligation to provi do thow ;Apiices. Exeept for-a change due pursuant to PaFagfVh 1.5.2, nbursable Expenses described in Subparagraph 1.3.9.2 and Paragraph . It is expressly understood and agreed by and between the parties hereto that any alteration in schedule, compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City Council resolution or City Manager action. It is expressly agreed by the parties that, as to services hereunder, the total sum of$122,450.00 plus authorized reimbursable expenses not to exceed the total sum of$10,000.00 shall represent the absolute limit of Owner's liability to Architect unless same shall be changed by Supplemental Agreement hereto. method;to an appropriate adjustment in Compensation. .4 significant shange in the PFejeot including, but not lim-ited-to, size, quality, complexity, the 0-viner's sehedille of budget,or proeurement .5 failure of perfe n:nan ce A-n the part of the 0-A—ey-or the 0-vfflef's;e.onsah-ants or eentfactors; .6 preparation 4-w and- at a public, heai-7ing, a diSpUte FeSOlUtiffl pwoeeding or- a legal pr-oeeediag exeept .7 change in the conentained in A#iedel_ 1.3.4 MEDIATION 1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation . If such matter relates to or is the subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation er-by arbitratien. 1.3.4.2 The Owner and Architect shall endeavor to resolve claims,disputes and other matters in question between them by mediation unless the paFties mutually agree atheFwise, shall be in aepnr-dAnoe i,4th the Const"Ietion lndustf�,, MediationU,.lo�which,.F*ho n.,,o,-:,.,... n 1.•. «• n .• t1 � � Request for mediation shall be filed in writing with the other party to this Agreement and ;vith the .4merisan Arbitrat Association. The requestmay be made ••_ s ,mediation shall proceed in advance of arbitratinn or legal or equitable proceedings,which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 8 1.3.4.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 1.3.5 ARBITRATION 1.3.54 Any elaim, dispute or other fnatter in question arising out of or-relatedd to this; AgFeement shall be subject we a-rhitration. Prior-ta A;:hitr-atian, the parties shall endeavor-te r-esalve disputes by mediation in aeeprdanpe;A,ith Paragraph lin 1-3.5.2 Claims, disputes; and- other m.-attes in question between the pai--tiss; that affe not reselved by mediation shall h d-e-c-id-ed- by arbitration A4iGh, unless the pai4ies mutually agree otheEwise, shall be in aepordanyo with the Cen,#riiption industf),-Arbitration Rides of the Amenivan Ar-hit*atien A, filed in vqitingwith the otheFp",to this Agreement and with the Amexican Ar-hitration Assoeiation. -1-3.5-3 .4 d-effl-and-for-wr-hitr-atiAn,;hall hp mndoy4thin A reasonahle tima afieF the claim,dispute or other matter in questie h—as afflisen. in no event s;hall thp demand ho mado After the dAto ilyhon institatien ef loo or-equitable proceedings based o suph daim,dispute er-other-matteF in question would he ha ed by the applienble statute Aflifnitations. 1-36.4 NO alrbitf;_160n A—FiSiRg OUt Of OFF01ating to this Agreement shall inelude,by eanselidation or-joindef or-in any other fnanneF, an additioaa4 peFsan or- entity not a party to this Agreement, erwept by wFitten Genseat Gontaining a specifle r-efewencCe to this Agreement and signed by the QwneF, Arehiteo, and MY OtheF PeFS011 OF eRtity SOUght to be join Consent to mr-b-itf-ation involving an additional pffson or- eatity shall not eonstitMlte G-o-n-sent to ar--h-it-r--ation afany elaim, therein. The 99fegaing agreement to arbitrate and etheF agFeements to afh-itrate viith an additional person or- entity dul consented to by panies to this Agrvefnmt shall be speeifioally mfomeable in aeyordanoe with applieable law in any couFt 1,.,ying:,r-isAietion thew-fdofl. 1355 Tho AwAr-d r-ende-red by the arbitfator Ar whitntors shall he final, and judgment may be entered upon it in appor-d-anee with applieable law in any couft having jurisdiction theroof 1.3.5.1 Owner and Architect hereby expressly agree that no claims or disputes between Owner and Architect arising out of or relating to the contract documents or a breach thereof shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable state arbitration statute,except that in the event that Owner is subject to an arbitration proceeding related to the Project,Architect consents to be joined in the arbitration proceeding if Architect's presence is required or requested by Owner for complete relief to be accorded in the arbitration proceeding. 1.3.6 CLAIMS FOR CONSEQUENTIAL DAMAGES 1.3.6.1 The Architect and the Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Paragraph 1.3.8. 1.3.7 MISCELLANEOUS PROVISIONS 1.3.7.1 This Agreement shall be governed by the pr-ovided in Paragraph 1.4.'laws of the state of Texas,and venue shall lie in Williamson County,Texas. 1.3.7.2 Terms in this Agreement shall have the samemeaning as those in the edition of AIA Document A201, General Conditions of the Contract for Construction, _uFrent as of rhe d-Me of this ^b.ee4.n_nt as modified between Owner and Contractor. 1.3.7.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations commence to run any later than the date when the Architect's services are substantially completed. 9 1.3.7.4 To the extent damages are covered by property insurance during construction,the Owner and the Architect waive all rights against each other and against the contractors, consultants,agents and employees of the other for damages,except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201,General Conditions of the Contract for Construction, euFFent as of the date of rhis g fee nen as modified between Owner and Contractor. The Owner or the Architect,as appropriate,shall require of the contractors,consultants,agents and employees of any of them similar waivers in favor of the other parties enumerated herein. 1.3.7.5 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. 1.3.7.6 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 or toxic substances in any form at the Project site. 1.3.7.7 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, 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 in the Owner's promotional materials for the Project. 1.3.7.8 If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. The Architect shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. 1.3.7.9 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 the Owner nor the Architect shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to an institutional lender providing financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under this Agreement.The Architect shall execute all consents reasonably required to facilitate such assignment. 1.3.8 TERMINATION OR SUSPENSION 1.3.8.1 If the Owner fails to make payments to the Architect in aeoerdane substantial compliance with this Agreement, such failure shall may be considered substantial nonperformance and 6ati ~ at rehitea'^ option, cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services,prior to suspension of services, the Architect shall give seven fifteen (15) days' written notice to the Owner. In the event of a suspension of services,the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all non-disputed sums due prior to suspension and any expenses incurredi in the intermption and resumption of the Arohi*A^''^ ^ The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. -1-312-1 if thO PFOjeet is suspended by the fior mor-a than 30 een-secutive days,the.A-rohitept-;hall he Gempensated &-ar-sp-R.4ces PeFfeFffled prior-to notip'A of such suspension. "Irtlen the Projeet is r-esufned,the-Mvhitep-t shall-he eempensated in-the inteFmption and resumption Af tho Arohiteet'ssepieos The Architect's f-ees for-the remaining se"Wes and_the tifne-schedules shall be equitably adjusted. 1.3.93 if the Pr-9jeet is suspended or the Arehiteet's s Hn-de-0- f-Aff m-e-re than 90 eenseeutive days, the .4 r-vhiteas-t may teFminate this Agreenient by giving not less than seven days'"tten notioe. This Agreement may be terminated by either paay upon not less than seven days'vRitty'"notioeshould the othe pafty fail substantially to perfimm in aGeard-aneo v.ith the terms of this Agreement t4augh no fault of the p",initiating the te'"4tieatian. 1.3.8.5 This Agreement may be tefininated by the Ownu upon not less than seven days' w6tten notiop to the Ar-chiteet for-the 0-vl,ner's;convenienee and without cause. 10 1.3.9-A In the event of tem.in-ation not the fault of the Architect, the AF-Ghit-ON-A sh-A-1-1 be COMPeRSat0d fAr- ReP40-AR petf4med prior to teFminatian,tagethef vVith Beimbursah-le Expenses then due.and all Teffnination Expenses as defined in Subparagraph 1 3 it 7 Tmninnfien Expenses are in addition to eompew;ation the sen,iecs of the Agreement and include expense directly at#ibutablets towmination fer-whiel;the Arehiteet is not Athtapxise compensated,plus an amount fi)f theArehitect's ad profit on the value of the seFvices not peFfaFmed by the Af:ehitect. 1.3.8.2 In connection with the work outlined in this Agreement,it is agreed and fully understood by Architect that Owner may cancel or indefinitely suspend further work hereunder or terminate this contract either for cause or for the convenience of Owner,upon fifteen(15)days'written notice to Architect,with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Architect shall invoice Owner for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. All plans, field surveys maps cross sections and other data,designs and work related to the Project shall become the property of Owner upon termination of this Agreement and shall be promptly delivered to Owner in a reasonably organized form without restriction on future use. Should Owner subsequently contract with a new architect for continuation of services on the Project,Architect shall cooperate in providing information. 1.3.8.3 Nothing contained in Section 1.3.8.2 immediately above shall require Owner to pay for any work which is unsatisfactory as determined by Owner's representative or which is not submitted in compliance with the terms of this Agreement. Owner shall not be required to make any payments to Architect when Architect is in default under this contract,nor shall this section constitute a waiver of any right,at law or at equity,which Owner may have if Architect is in default,includingthe he right to bring legal action for damages or to force specific performance of this Agreement. 1.3.9 PAYMENTS TO THE ARCHITECT 1.3.9.1 Payments on account of services rendered and for Reimbursable Expenses incurred shall be made monthly upon presentation of the Architect's statement of services. 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 has been adjudged to be liable. 1.3.9.2 Reimbursable Expenses are in addition to compensation for the Architect's services and include expenses incurred by the Architect and Architect's employees and consultants directly related to the Project, as identified in the following Clauses: .1 transportation in connection with the Project, authorized out-of-town travel and subsistence, and electronic communications; .2 ices paid fe am of autherifies havingjur-isdietien ever the Project-, .3 reproductions,plots,standard form documents,postage,handling and delivery of Instruments of Service; .4 expense of AM,e_#im_c;.vn_r-k requir-ing higheF than regular-rates ifnighmized in advance by the Owner; c cade4.:ng miodols and-w.,.,.v UPS_ ested by the Owner; .6 expease of professional liability insurance dedicated exclusively to this Project or the expe-mse of additiAnal insurance e-A-ver-age or- limits requested by the 0-i'Affier- in exress Af that nonnally earfied by thp Avehiteet and Architect's consultants; .7 reimbursable expenses as designated in Paragraph 1.5.5.; .8 other similar direct Project related expenditures. 1.3.9.3 Records of Reimbursable Expenses,of expenses pertaining to a Change in Services,and of services performed on the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to Owner or Owner's authorized representative at mutually convenient times. Il 13.9.4 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, employee retirement plans and similar contributions. ARTICLE 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 1.4.1 Enumeration of Parts of the Agreement. This Agreement represents the entire and integrated agreement between the Owner and the 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.This Agreement comprises the documents listed below. 1.4.1.1 Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services, AIA Document B141-1997,as herein amended. 1.4.1.2 Standnr-d Fnnn nf Ar-ohitApt's Sen,ieesi Design and Gentmet Administration, AIA Document A141 1997, or- €el-lews (List other documents, if any,delineating Architect's scope of services) 1.4.13 Other documents as follows: (List other documents,if any,forming part of the Agreement.) "Supplemental Agreement No. V supplementing Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services AIA Document B141-1997. 1.4.2 Special Terms and Conditions.Special terms and conditions that modify this Agreement are as follows: It is expressly understood and agreed by and between the parties hereto that Architect shall be solely responsible for ensuring that the Project meets all pre-construction, construction, and post-construction requirements imposed by the American Disability Act which are in force and effect during the preparation of Construction Documents by Architect. ARTICLE 1.5 COMPENSATION 1.5.1 For the Architect's services as described herein,compensation shall be computed as follows: Architect's total compensation for services hereunder shall not exceed the sum of $122,450.00 established herein, plus authorized reimbursable expenses in a sum not to exceed$10,000.00,which sum for reimbursable expenses shall include the actual costs of such items as travel, copies, reproductions, presentations, telephone, postal or courier services, and other similar expenses. 1.5.2 If the services of the Architect are changed as described in Subparagraph 1.3.3.1,the Architect's compensation may be adjusted. Such adjustment shall be calculated as described below o-, if no fneth d of adjustment is indi.,,.oa in this Par-ag+aph 1.5.2,in an equitable manneF. (Insert basis of compensation, including rates and multiples of Direct Personnel Expense for Principals and employees,and identify Principals and classify employees, if required. Idents specific services to which particular methods of compensation apply) 1.53 For a Change in Services of the Architect's consultants,compensation shall he computed as a multiple of one(1.00) times the amounts billed to the Architect for such services. 1.5.4 For Reimbursable Expenses as described in Subparagraph 1.3.9.2, and any other items included in Paragraph 1.5.5 as Reimbursable Expenses,the compensation shall be computed as a multiple of one( 1.00)times the expenses incurred by the Architect,and the Architect's employees and consultants. 1.5.5 Other Reimbursable Expenses,if any,are as follows: 12 1.5.6 The rates and multiples for services of the Architect and the Architect's consultants as set forth in this Agreement shall be adjusted in accordance with their normal salary review practices. 1.5.7 An initial payment of Zero and No/100 Dollars($0.00)shall be made upon execution of this Agreement and is the minimum payment under this Agreement.It shall be credited to the Owner's account at final payment.Subsequent payments for services shall be made monthly,and where applicable,shall be in proportion to services performed on the basis set forth in this Agreement. 1.5.8 Payments are due and payable thirty 30 days from the date of the Architect's invoice,or not later than the time Period required under the Texas Prompt Payment Act, whichever is later. Non-disputed amounts unpaid sixty 60 days after the invoice date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (Insert rate of interest agreed upon.) One and one-half percent(1 '/�%)per month (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Architect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) 1.95.9 If th A-se-PA ces A-ove-Fed by this Agre-em-ent have not been completed Acithin months A-f the date her-pkef-,through He fault afthe Arehiteet,extenqinn of tho Arphitoot";Rep.,kes beyond that tifne shall be oempeasated as provided in Paragraph This Agreement entered into as of the day and year first written above. OWNER ARCHITECT CITY OF ROUND ROCK,TEXAS K.A.HICKMAN ARCHITECTS&INTERIOR DESIGNERS By: By: Nyle Maxwell,Mayor Keith A.Hickman,AIA,Principal ATTEST: Christine R.Martinez,City Secretary FOR CITY,APPROVED AS TO FORM: Stephan L.Sheets,City Attorney 13 SUPPLEMENTAL AGREEMENT NO. 1 THE STATE OF TEXAS § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: COUNTY OF TRAVIS § COUNTY OF WILLIAMSON § This document is entitled Supplemental Agreement No. 1, and it supplements Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services, AIA Document B 141-1997, for the following Project: Complete planning,civil, architectural, design, structural,mechanical/electrical/plumbing engineering services, IT, fire protection, document production, bidding-related services, and construction administration services related to the following: Facilities to house Round Rock Fire Station#7 to be located in Round Rock,Texas, such facilities to house and support areas of fire operations and service, all as are more specifically identified and described in the accompanying AIA Document B 141-1997. This Supplemental Agreement No. 1 is made and entered into as of the same date of the Agreement it supplements, that being the day of , 2005, and likewise is by and between the same parties, those being the CITY OF ROUND ROCK, a home-rule municipal corporation of Williamson and Travis Counties, Texas(hereinafter referred to as "City"and/or"Owner") and K.A. HICKMAN ARCHITECTS & INTERIOR DESIGNERS, with offices located at 1517 East Palm Valley Boulevard,Round Rock,Texas,78664(hereinafter referred to as"Architect"). WITNESSETH• WHEREAS, as is recited in the Agreement this document supplements, City intends to design and construct the described project(hereinafter called the"Project"). Architect's services are desired for purposes including but not limited to planning, civil, architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection, document production, bidding- related services, and construction administration services related to the Project. Total compensation for Architect's services under this Agreement shall not exceed the following: $122,450.00,plus reimbursable expenses in an amount not to exceed$10,000.00. WHEREAS, as is recited in the Agreement this document supplements, City desires to contract with Architect for the delineated professional services in connection with design and construction of the Project, and for the administration of the Construction Contract during construction of a portion of the Project, all as previously and hereinafter stipulated and within the limits the City has budgeted or will budget therefor; and WHEREAS, as is stipulated in the Agreement this document supplements, Architect has agreed to provide such professional services for the compensation delineated previously and herein; 00088027/jkg 1 NOW, THEREFORE, City and Architect, in consideration of the terms, covenants and conditions contained in the Agreement this document supplements and herein,hereby agree as follows: ARTICLE I SCOPE OF SERVICES AND COMPENSATION 1.01 Scope. Architect, as an independent contractor and professional consultant in its relationship with the City, shall perform all professional services for the Project as set forth in this Agreement. 1.02 Compensation. City shall compensate Architect in accordance with the terms and conditions as recited in Paragraph 1.1.2.5 of accompanying AIA Document B 141-1997. Unless subsequently changed by additional Supplemental Agreement to this Agreement, duly authorized by City Council Resolution or City Manager action, Architect's total compensation hereunder shall not exceed $122,450.00, plus a not-to-exceed amount of$10,000.00, for approved Reimbursable Expenses. These amounts represent the absolute limit of City's liability to Architect under this Agreement, unless same shall be changed by additional Supplemental Agreement hereto. The times and further conditions of payment shall be as described in Article VI hereof. ARTICLE II ARCHITECT'S SERVICES 2.01 Basic Services. Architect's Basic Services consist generally of the phases described below, and include complete planning, civil, architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection, document production, bidding-related services, and construction administration services, and such other services as may be necessary to assist the City in the design and construction of the Project, within the limits the City has budgeted or will budget therefor, and in compliance with the Project Facility Program, which is hereby made a part of this Agreement for all purposes. Architect agrees that upon execution of this Agreement, it will submit to City within ten (10) days a list of all additional consultants it intends to utilize, not previously identified in Architect's proposal, delineating their respective tasks. All of Architect's consultants shall be subject to the approval of the City through its City Manager, and City reserves the right to reject any consultant. Architect shall perform all work hereunder in a manner satisfactory and acceptable to the City, represented by its City Manager or his designee, hereinafter referred to as "Director." A Performance Schedule shall be agreed to by Architect and Director, and Architect agrees to use its best efforts to complete all services hereunder in accordance with such Performance Schedule. All services shall be performed to the highest professional standard. 2.02 Schematic Design Phase. Architect shall provide the following Schematic Design Phase Services: (1) Programming, including holding pre-development conference with City; holding meetings with firefighters, as deemed necessary by City; developing preliminary draft program,and reviewing same with City; and finalizing draft program. 2 (2) Schematic Design including developing site analysis; developing conceptual plans, and reviewing same with City; refining conceptual plans and developing elevations; developing cost estimate; and reviewing Schematic Plans with City. 2.03 Design Documents Phase. Architect shall provide the following Design Documents Phase Services: (1) Architect shall prepare Design Documents based on the approved Schematic Design Documents and updated budget for the Cost of the Work, said Design Documents to include adequate specifications for elements of the Project for consideration and approval by Director. Five (5) copies each of said documents will be submitted to City, each consisting of drawings and other documents to fix and describe the size, cross sections and character of the Project as to architectural, structural, mechanical and electrical systems, materials, and such other essentials as may be necessary and appropriate. Said documents shall illustrate and describe the refinement of the design of the Project, establishing the scope, relationships, forms, size and appearance of the Project by means of plans, sections and elevations, typical construction details, and equipment layouts. Said documents shall include outline specifications that identify major materials and systems and establish in general their quality levels.The Design Document Phase shall be completed within the agreed Performance Schedule. (2) Architect shall submit to City a Revised Statement of Probable Construction Cost in a form acceptable to Director. Any variance in the estimated construction costs that will adversely affect the established Project Budget will be submitted to Director with appropriate comments and recommendations prior to beginning the Construction Documents Phase. 2.04 Construction Documents Phase. Architect shall provide the following Construction Documents Phase Services: (1) Architect shall prepare from the approved Design Development Documents and updated budget for the Cost of the Work, for consideration of and approval by Director, Construction Documents, which documents shall set forth in detail the requirements of the entire Project, including the necessary bidding information prepared in such a way to allow City, if it so desires, to advertise for the award of one or more contracts for the construction and completion of the entire Project, or any phase thereof, and Architect shall assist City in preparation of the Bidding Forms, shall utilize without modification City's standard General and Supplementary General Conditions, and shall draft all Special Conditions of the Contract. City's standard form of Contract between City and the Contractor shall also be utilized, along with City's form of Bid Bond, Performance Bond and Payment Bond. Architect shall also compile the Project Manual that includes the Conditions of the Contract for Construction and Specifications and may include bidding requirements and sample forms. City shall provide all standard documents for Architect to include in the Project Manual. (2) Architect shall furnish City in writing a revised Statement of Probable Construction Cost, indicating cost changes resulting from changes in Project requirements or general market conditions,in a form acceptable to Director. 3 (3) Architect shall file five (5) complete sets of proposed Construction Documents with Director for review and official approval prior to the advertisement of bids for the construction of the Project, and within the agreed Performance Schedule following approval of the Design Documents. Following approval, Architect shall prepare and have on hand additional sets as needed for bidding purposes. Should additional sets be required,Architect will be reimbursed for same as an eligible reimbursable expense,upon approval in advance by City. Architect shall also file with Director at said time, the following items: (a) Tracing of the Project Title Sheet, signed by Architect, with seal affixed. (This tracing shall be returned to Architect to print contract documents when the signatures of City officials have been properly affixed). (b) Two(2)copies of detailed cost estimates in a form acceptable to City. (c) Four (4) unbound copies of the approved Project Construction Manual for subsequent binding with signed construction contracts. The Project Construction Manual shall include General and Supplementary General Conditions; Specifications and Special Provisions; Advertisement, Instructions to Bidders and Bid Proposal Form; City's Bid Bond, Contract, Performance and Payment Bond Forms; approved Wage Rates; Federal regulations if applicable to the Project; and other required documents for construction of the Project. (4) Architect shall be solely responsible for obtaining the prior approval of the Texas Department of Licensing and Regulation prior to submittal of all Construction Documents to City for approval. Any fees charged by the Department for this approval shall be paid by Architect as a reimbursable expense. 2.05 Bidding/Negotiation Phase. Architect shall provide the following Bidding/Negotiation Services: Following City's approval of the Construction Documents and of the latest Statement of Probable Construction Cost, Architect shall assist City in awarding a construction contract following legal public bid requirements. Architect shall arrange for procuring the reproduction of Bidding Documents, distributing same to prospective bidders, and maintaining records. Owner shall be responsible for payment for the costs of reproduction of such documents, either directly or through reimbursement to Architect. During the bid process,Architect shall assist City as follows: (1) Jointly conducting pre-bid conferences, including on-site visits as required, to endeavor to assure that bidders understand the Construction Documents, the various on-site conditions,and the coordination and scheduling requirements. (2) Preparing responses to questions from prospective bidders, and providing clarifications and interpretations of the Bidding Documents to all prospective bidders in the required form of addenda to Contract Documents. (3) Assisting in the opening of bids, tabulation and evaluation of bids received, and advising on award of the contract. 4 (4) Jointly conducting pre-award conferences where necessary. Architect's assistance to City shall include submitting written reviews and recommendations for awards based upon the acceptability of bids; and, if required by City, more detailed analyses of specific bids. Reviews shall also consider the responsiveness of bids and their conformity with Bid Documents. 2.06 Construction Administration Phase. Architect shall provide the following Construction Administration Phase Services: The Construction Phase will commence with the award of the first Construction Contract and will terminate following the final one-year warranty inspection of the completed Project, correction of all defects in Project materials and workmanship, and resolution of all Project-related claims and disputes. During the Construction Phase,Architect shall provide the following services: (1) Architect shall provide administration of the Construction Contract as set forth in the Construction Documents, specifically the General and Supplementary General Conditions. Architect's assigned authority thereunder will not be substantially modified without Architect's written consent. (2) Architect shall review properly prepared, timely requests by the Contractor for additional information about the Contract Documents. A properly prepared request for additional information about the Contract Documents will be in a form prepared or approved by Architect and will include a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. (3) If deemed appropriate by Architect, Architect will on Owner's behalf prepare, reproduce and distribute supplemental Drawings and Specifications in response to requests for information by the Contractor. (4) Interpretations and decisions of Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, Architect will endeavor to secure faithful performance by both Owner and the Contractor, will not show partiality to either, and will not be liable for the results of interpretations or decisions so rendered in good faith. (5) Architect shall render initial decisions on claims, disputes or other matters in question between Owner and the Contractor as provided in the Contract Documents. However, Architect's decisions on matters relating to aesthetic effect will be final only if consistent with the intent expressed in the Contract Documents. (6) Architect shall report to Owner all deviations from the Contract Documents and most recent construction schedule submitted by the Contractor. However,Architect will not be responsible for the Contractor's failure to perform work in accordance with requirements of the Contract Documents. Architect will be responsible for Architect's acts or omissions,but will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the work. 5 (7) Architect will at all times have access to the work wherever it is in preparation or in progress. (8) Owner will endeavor to communicate with the Contractor through Architect about matters arising out of or relating to the Contract Documents. Communications by and with Architect's subconsultants will be through Architect. (9) Architect, as a representative of City, shall advise and consult with Director and will keep City informed in writing through him of the progress of the Project, including percent complete on a monthly basis, during the Construction Phase; and after issuance of the "work order"to proceed with the work, all of City's instructions to its Contractors will be issued through Architect. Architect will have authority to act on behalf of Owner only to the extent provided in this Agreement unless otherwise properly modified by written amendment. (10) Architect shall provide, during construction, adequate and competent on-site construction observation,periodically visiting the site to the extent necessary to personally familiarize itself with the progress and quality of the work, and to determine if the work is proceeding in accordance with the Contract Documents. Architect's site observations may be conducted with Owner's designated representative to check conformance of the work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of work to be completed or corrected. Field Reports of each visit shall be prepared by Architect and submitted to City. Architect shall employ all reasonable measures to safeguard City against defects and deficiencies in the work of the Contractor. Architect shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the work. However, Architect will immediately inform Director whenever defects and deficiencies in the work are observed, or when any observed actions or omissions are undertaken by the Contractor which are not in the best interests of City and the Project. (11) Based on such observations at the site and on the Contractor's Application and Certificate for Payment,Architect shall determine, monthly,the amount owing to the Contractor and shall certify and forward the Contractor's Application and Certificate for Payment to Director for approval and payment. These certifications shall constitute a representation by Architect to City, based on observations at the site and other data comprising the application for payment, that the work has progressed to the point indicated; that to the best of Architect's knowledge, information and belief, the quality of the work is in accordance with the Contract Documents (subject to an evaluation of the work as a functioning whole upon substantial completion, to the results of any subsequent tests required by the Contract Documents, to minor deviations from the Contract Documents correctable prior to Project completion, and to any specific qualifications stated in the Certificate); and that the Contractor is entitled to payment in the amount certified. (12) Architect shall have authority to reject work which does not conform to the Contract Documents. Whenever Architect considers it necessary or advisable, Architect will have authority to require 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 Architect nor a decision made in good faith either to 6 exercise or not exercise such authority shall give rise to a duty or responsibility of Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the work. (13) Architect shall make recommendations on all claims and disputes of City or the Contractor relating to the execution and progress of the work or the interpretation of the Contract Documents, based upon such review and analysis by Architect as may reasonably be required. In the event of litigation, where Architect is named as an additional party with the City, such assistance will include the availability of knowledgeable witnesses in the employ of Architect for expert testimony. (14) Architect shall use his best efforts to promptly review and approve or reject shop drawings, product data and samples and other submissions of the Contractor for conformance only with the design concept of the Project and with the information given in the Contract Documents. Architect shall establish and implement precise procedures, to be approved by City's Director, for expediting the processing and approval of these submissions without delay. Prompt review by Architect of submissions is of prime importance to City and an absolute necessity under the time constraints of the Project. (15) Architect shall prepare Change Orders and/or Construction Change Directives to the construction contract, in six (6) copies, after review and approval by City. Each Change Order shall be specific and final as to prices and extensions of time, with no reservations or other provisions allowing for future additional money or time as a result of the particular changes identified and fully compensated in the Change Order. Architect's compensation for preparation of Change Orders, if any, shall be determined by Section 2.09(1)below. (16) Architect shall conduct inspections to determine the dates of substantial completion and final completion, shall receive written guarantees and related documents assembled by Contractor for submittal with the final Certificate of Payment, and shall prepare and present final Certificate for Payment to Director for City's approval and payment. In addition,Architect shall make inspection of the Project at least thirty(30)days before the expiration of the one(1)year warranty contained in the Contractor's Performance Bond. (17) Architect shall conduct regularly scheduled progress meetings with City, the Contractor and major Subcontractors. Minutes of same shall be prepared by Architect with copies submitted to City's Director. (18) Architect shall have authority to order minor changes in the construction work, consistent with the Contract Documents, and not involving an adjustment in the Contractor's bid price or an extension of the Project Schedule. Such changes shall be accomplished by Field Order. In addition, Architect may issue written Field Orders which interpret the Plans and Specifications, with copies submitted to City's Director. (19) Architect shall assemble and deliver to City a set of reproducible Record Construction Drawings showing significant changes in the work during the construction process and final location of mechanical and electrical service lines and outlets, based upon marked- up prints of drawings and other data furnished by the Contractor to Architect. Architect shall provide Record Construction Specifications which will identify the changes in the 7 specifications on a sheet, which sheet will be inserted at the beginning of each section to which they pertain. (20) Architect shall obtain from the Contractor and forward to Owner the following: (1) consent of surety or sureties, if any, of reduction in or partial release of retainage or the making of final payment; and (2) affidavits, receipts, releases and waivers of liens or bonds indemnifying Owner against liens. 2.07 Warranty Phase. Architect shall assist Owner in scheduling corrections to be made by the Contractor during the warranty period. During the eleventh month following completion of the prime general contract, Architect will arrange for a warranty inspection tour of the entire Project by authorized representatives of City, the Subconsultants and of each prime contractor engaged on the Project. Architect shall then prepare a list of work which needs to be done by each prime contractor to satisfy that prime contractor's warranty obligations to City. For any non-warranty involvement of Architect, payments shall be made based upon the Hourly Rate Schedule contained in this Agreement. 2.08 Project Representation Beyond Basic Services. In the event that circumstances should develop whereby continuous, full-time representation at the Project site is required, the conditions under which such representation shall be furnished and the Project Representatives selected, employed and directed shall be governed by an additional written Supplemental Agreement between City and Architect. 2.09 Additional Services. Architect shall perform Additional Services, as requested by City, after a not-to-exceed amount has been mutually agreed upon in writing by Director and Architect. Where City Council or City Manager authorization is required, Architect shall not proceed until the appropriate Resolution or directive for such Additional Services has been delivered. The following services are not covered under Article II, which defines and outlines Architect's Basic Services. If any of these Additional Services are authorized in writing by Director in advance of their performance, they shall be paid for in the manner agreed to at the time of authorization. (1) Preparing Change Orders and supporting data and/or revising previously approved plans when the changes in approved Plans and Specifications are required by the City. If changes are required to be made because of error, oversight, clarification, discrepancy, or budget overruns in the work of Architect, City shall not be liable to compensate Architect for Additional Services or expenses in such connection. (2) Providing consultation concerning replacement of any Project work damaged by fire or other cause during construction, and furnishing professional services as may be required in connection with the replacement of such work, unless damage was the result of Architect's error. (3) Providing other extraordinary professional services over and above the contract requirements,where required and requested by City, including extraordinary professional services which might result if the City decides to"fast-track"the Project. ARTICLE III CITY'S RESPONSIBILITIES 3.01 Full information.City shall provide full information regarding requirements for the Project. 8 3.02 Designate representatives. City shall designate, when necessary, representatives authorized to act in its behalf. City shall examine documents submitted by Architect and render decisions pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Architect's work. 3.03 Survey. City shall furnish,or direct Architect to obtain at City's expense,a certified survey of the site, giving, as required, grades and lines of streets, alleys, pavements and adjoining property; rights-of- way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries, contours and other data pertaining to existing buildings or adjacent to the site, other improvements and trees; and full information as to available service and utility lines, both public and private, and test borings, pits, reports and soil bearing values and other necessary operations for determining subsoil conditions. 3.04 Tests and inspections. City shall furnish, or pay for structural, mechanical, chemical, soil mechanics, and other laboratory tests, reports and inspections as required by law or the Contract Documents. 3.05 Permits. City will furnish the building permit without charge. Electrical, plumbing and other trade permits will be the responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by City and are not to be included by Architect in the Specifications for the Project. 3.06 Miscellaneous items. City will also provide Architect with such items as the Project Facility Program; two (2) copies of the City of Round Rock General and Supplementary General Conditions for Building Construction, Instructions to Bidders, Proposal Forms, Wage Rates, Contract and Bond Forms, Bid Advertisement Form, and such other information and materials as may be necessary and practicable for the orderly and expeditious process of the work and the awarding of the Construction Contract. To the extent practicable,these documents shall be utilized in the preparation of the Construction Documents. ARTICLE IV FIXED LIMIT OF TOTAL BUDGETED CONSTRUCTION COST 4.01 Budgeted Construction Costs. The fixed limit of total Budgeted Construction Cost for this Project has not been fully ascertained as of the date of making of these Contract Documents. Architect, in consultation with City, shall determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, and will make reasonable adjustments in the scope of the Project to bring it within the limits when fixed. With City approval, Architect may also include in the Contract Documents alternate bids to adjust the construction cost to the fixed limit. If the lowest responsible bid is within the fixed limit of total Budgeted Construction Cost for the Project, or Architect's latest detailed estimate of Probable Construction Cost is still less than the fixed limit of total Budgeted Construction Cost for the Project, City shall pay Architect fees for Basic Services in accordance with this Agreement. 4.02 Procedures if bid(s) exceed Budgeted Construction Costs. If the lowest responsible bid exceeds its portion of the fixed limit of total Budgeted Construction Cost for the Project, and as a result thereof, or otherwise, the latest estimate of Probable Construction Cost exceeds such fixed limit of total Budgeted Construction Cost for the Project, City at its option may either(1) give written approval of an increase in such fixed limit, with no obligation to increase Architect's fee, or (2) authorize rebidding within a reasonable time, or (3) cooperate in revising the Project scope and quality as required to reduce the Probable Construction Cost. In the case of(3), Architect, without additional charge, shall immediately modify the Drawings and Specifications as necessary to bring the Project cost within the budgeted fixed 9 limit, or within any higher fixed limit subsequently authorized by City. Providing this service shall be the limit of Architect's responsibility in this regard, and having done so, Architect shall be entitled to his fees in accordance with this Agreement. ARTICLE V REIMBURSABLE EXPENSES 5.01 Reimbursable Expenses. Reimbursable Expenses are in addition to the fees for Basic and Additional Services and include actual expenditures at actual costs made by Architects, their employees, or their consultants in the interest of the Project for the incidental expenses set forth below. Such expenses must be authorized in advance. 5.02 Travel, phone, postage, reproduction, etc. When authorized in advance by City, the following shall be reimbursable: reasonable transportation and living expenses of principals and employees when traveling in connection with the Project outside of Williamson County, Texas, essential long distance calls and telegrams, fees paid for the securing of approval of authorities having jurisdiction over the Project,postage,and reproduction of Drawings and Specifications, excluding copies for Architect's office use and the required number of sets at each phase of the work for City's review. 5.03 Overtime. If authorized in advance by City, the expense of extraordinary overtime work, not due to Architect delays, requiring higher than regular rates, and renderings, slides, photographs or models for the City's use shall be reimbursable. 5.04 Texas Department of Licensing and Regulation fees. Any fees charged to Architect by the Texas Department of Licensing and Regulation for review and approval of design or development documents shall be reimbursable. 5.05 Texas Natural Resource Conservation Commission fees. Any fees charged to Architect by the Texas Natural Resource Conservation Commission for Water Pollution Abatement Plan and for Sewage Collection Fee shall be reimbursable. 5.06 Special Consultants. If the employment of special consultants for specialized design services is authorized by City, (for example, special lighting and landscape consultants, special soil mechanics engineers, communications consultants, etc.), fees for other than normally required architectural, structural, mechanical, electrical and civil engineering services and the Basic Services hereinbefore defined, shall be reimbursable. ARTICLE VI PAYMENTS TO THE ARCHITECT 6.01 Basic Services. Payments on account of Architect's Basic Services shall be made monthly in proportion to the degree of completion of each phase, but not to exceed the following percentages of the respective fees at the completion and approval of each phase of the work: I. FEE APPORTIONMENT BY PHASE (a) Schematic Design Phase $ 18,367.50 (b) Design Documents Phase $ 18,367.50 (b) Construction Document Phase $48,980.00 10 (c) Bidding/Negotiation Phase $ 6,122.50 (d) Construction Administration Phase $30,612.50 TOTAL SERVICES $122,450.00 As to the Construction Administration Phase fee apportionment of$30,612.50,Architect shall invoice for equal monthly payments based upon the contractually stipulated Construction Period. 6.02 Reimbursable Expenses and Additional Services. Payments for authorized Reimbursable Expenses and Additional Services for Architect, as hereinbefore referred to, shall be made following presentation,review and approval of Architect's detailed invoice in triplicate. 6.03 Deductions. No deductions shall be made from Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to Contractors. 6.04 Additions. No additions shall be made to Architect's compensation based upon Project construction claims,whether paid by City or denied. 6.05 Abandonment. If any work designed or specified by Architect during any phase or subphase is abandoned or suspended, in whole or in part,Architect is to be paid for the services performed on account of it prior to receipt of written notice from City through its Director of such abandonment or suspension. 6.06 Invoices. Architect's invoices to City shall provide complete information and documentation to substantiate Architect's charges, and shall be in a form to be specified by Director. All payments to Architect shall be made on the basis of the invoices submitted by Architect and approved by Director. Such invoices shall conform to the schedule of services and costs in connection therewith set out hereinabove. All Reimbursable Expenses shall be clearly shown. Should additional backup material be requested by Director, Architect shall comply promptly with such request. In this regard, should Director determine it necessary, Architect shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. 6.07 Payment of Invoices. City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Architect and to adjust the same to meet the requirements of the Agreement. Following approval of invoices, City will endeavor to pay Architect promptly, but not later than the time period required under the Texas Prompt Payment Act; however, under no circumstances shall Architect be entitled to receive interest on payments which are late because of a good faith dispute between Architect and City or because of amounts which City has a right to withhold under this Agreement or state law. 6.08 Offsets.City may, at its option,offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Architect, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. ARTICLE VII ARCHITECT'S ACCOUNTING RECORDS 7.01 Accounting Records. Records of Architect's Consultant and Reimbursable Expenses pertaining to the Project, and records of accounts between City and Architect shall be kept on a generally recognized 11 accounting basis and shall be available to City or its authorized representatives at mutually convenient times. ARTICLE VIII TERMINATION AND DEFAULT 8.01 Termination. In connection with the work outlined in this Agreement, it is agreed and fully understood by Architect that Director may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of City, upon fifteen(15) days' written notice to Architect,with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Architect shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized form without restriction on future use. Should City subsequently contract with a new architect for continuation of services on the Project, Architect shall cooperate in providing information. 8.02 Default.Nothing contained in Section 8.01 above shall require City to pay for any work which is unsatisfactory as determined by Director or which is not submitted in compliance with the terms of this Agreement. City shall not be required to make any payments to Architect when Architect is in default under this Agreement, nor shall this Article constitute a waiver of any right, at law and at equity, which City may have if Architect is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. ARTICLE IX GENERAL,SUPPLEMENTARY AND SPECIAL CONDITIONS; CONTRACT ADMINISTRATION 9.01 General, Supplementary and Special Conditions. City of Round Rock - Supplementary General Conditions to AIA Document A201, "General Conditions of the Contract for Construction", are to be used by Architect without modification; however, City may,upon prior consultation,approve of any changes that may be necessary for specific cases or instances. Any special conditions pertaining to the Project that are approved by City will be included under the Special Conditions portion of the Construction Documents. 9.02 Contract Administration. This Agreement shall be administered on behalf of City by its City Manager, and Architect shall fully comply with any and all instructions from Director. Any dispute arising hereunder shall be submitted to Director,whose decision in the matter shall be final and binding. ARTICLE X RESPONSIBILITY FOR WORK,INDEMNIFICATION AND INSURANCE 10.01 Architect's Responsibility for Work. Approval by City shall not constitute nor be deemed a release of the responsibility and liability of Architect, its employees, subcontractors, agents and consultants for the accuracy and competency of their Designs, Working Drawings, Specifications or other documents and work; nor shall such approval be deemed to be an assumption of such responsibility by 12 City for any defect, error or omission in the Designs, Working Drawings, and Specifications or other documents prepared by Architect,his employees, subcontractors,agents and consultants. 10.02 Indemnification (Damage Claims). Architect agrees to defend, indemnify and hold City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Architect's breach of any of the terms or provisions of this Agreement, or by any negligent act or omission of Architect,his officers, agents, associates, employees or subconsultants, in the performance of this Agreement; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Architect and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 10.03 Indemnification (Patent and Copyright Claims). Architect agrees to completely defend and indemnify City, its officers, agents and employees, against a claim that any of the Designs, Plans or Specifications prepared by Architect, its employees, associates or subconsultants, pursuant to this Agreement infringe a U.S. patent or copyright directly, indirectly or contributorily, regardless of whether or not City is proven to have actively induced or contributed to the infringement. Architect will pay any and all resulting costs,damages and attorney's fees finally awarded,provided that: (1) City promptly notifies Architect in writing of the claim; and (2) Architect has sole control of the defense and all related settlement negotiations. (a) If Architect defends City against such claims, the City Attorney of City shall be kept informed of settlement negotiations, and shall execute any settlement agreement reached by Architect on City's behalf. (b) Architect's defense and indemnification under this section is conditioned on City's agreement that if any of the designs,plans or specifications, become, or in Architect's opinion are likely to become, the subject of such a claim, City will permit Architect, at Architect's option and expense,either to procure the right for City to continue using the designs, plans or specifications or to replace or modify the same so that they become non-infringing; and if neither of the foregoing alternatives is available on terms which are reasonable in Architect's judgment, City,to the extent City is legally able to do so, will cease using the designs, plans or specifications on written request of Architect, in which instance City has the sole option to either require Architect to perform new design work at Architect's sole expense, or to terminate this Agreement. (c) Architect has no liability under this section for any claim of infringement based upon the modification or alteration of the designs, plans or specifications prepared under this Agreement subsequent to the Project by City, or by any engineering consultant subsequently employed by City. 13 (d) The foregoing states the entire obligation of Architect with respect to infringement of patents and copyrights. 10.04 Insurance. Architect, at Architect's sole cost, shall purchase and maintain during the term of this Agreement the minimum professional liability insurance coverage in the amount of One Million Dollars ($1,000,000.00) from a company authorized to do insurance business in Texas and otherwise acceptable to City. 10.05 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Architect, Architect shall require each subconsultant performing work under this Agreement to maintain during the term of the Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Section 10.04 above, including the required provisions and additional policy conditions as shown below in Section 10.06, unless specifically waived by the City Manager. As an alternative, Architect may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Architect's certificate of insurance shall note in such event that the subconsultants are included as additional insureds and that the Architect agrees to provide Workers' Compensation coverage for the subconsultants and their employees. Architect shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Architect must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. 10.06 Insurance Policy Endorsements. Each insurance policy under paragraph 10.04 shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager,City of Round Rock 221 East Main Street Round Rock,Texas 78664 Architect shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation,non-renewal,or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Architect. (3) The Term "City" or "City of Round Rock" shall include all authorities, Boards, Commissions, Departments, and officers of City and the individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self-Insured Retentions of whatever nature. 14 10.07 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Architect shall be borne solely by Architect, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. ARTICLE XI COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES,ETC. 11.01 Compliance with Laws. Architect, its consultants, agents, employees and subcontractors shall comply with all applicable Federal and State Laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by all local, State and National boards, bureaus and agencies. Architect shall further obtain all permits and licenses required in the performance of the professional services contracted for herein. 11.02 Taxes. Architect will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise,and Use Tax Act. ARTICLE XII TERM 12.01 Term.Unless sooner terminated in accordance with the applicable provisions hereof,or extended by mutual agreement approved by City's Director, the term of this Agreement shall be from the date hereof until final completion of the Project and all architectural/engineering and construction administration services in connection therewith, including the final one(1) year warranty inspection, and resolution of any outstanding Project-related claims or disputes. 12.02 Project Performance Schedule. Architect understands that the Project Performance Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of services required herein, so that construction of the Project will be commenced as scheduled. In this regard, Architect shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all services required under this Agreement in the highest professional manner. ARTICLE XIII FINANCIAL INTEREST PROHIBITED,CONFIDENTIALITY 13.01 Financial Interest Prohibited. Architect covenants and represents that Architect, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the Project. 13.02 Confidentiality. Architect's reports, evaluations, designs, drawings, data, and all other documentation and work developed by Architect hereunder shall be kept confidential, and shall not be disclosed to any third parties without the prior written consent and approval of City's Director. ARTICLE XIV GENERAL PROVISIONS 14.01 Time is of the Essence. Architect understands and agrees that time is of the essence and that any failure of Architect to complete the services for each phase of this Agreement within the agreed Project 15 Performance Schedule will constitute a material breach of this Agreement. Architect shall be fully responsible for its delays or for failures to use his best efforts in accordance with the terms of this Contract. Where damage is caused to City due to Architect's failure to perform in these circumstances, City may withhold, to the extent of such damage, Architect's payments hereunder without waiver of any of City's additional legal rights or remedies. 14.02 Force Majeure.Neither City nor Architect shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 14.03 Assignment. The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Architect shall not assign, sublet or transfer any interest in this Agreement without prior written authorization of City's Director. 14.04 Amendments. This Agreement, representing the entire agreement between the parties, may only be amended or supplemented by mutual agreement of the parties hereto in writing. 14.05 Enforcement and Venue. This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 14.06 Notices. All notices and correspondence to City by Architect shall be mailed or delivered as follows: City Manager,City of Round Rock 221 East Main Street Round Rock,Texas 78664 and to: Stephan L. Sheets,City Attorney 309 East Main Street Round Rock,Texas 78644 All notices and correspondence from City to Architect shall be mailed or delivered to the Architect as follows: Keith A. Hickman K.A. Hickman Architects&Interior Designers 1517 East Palm Valley Boulevard Round Rock,Texas 78664 IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its Mayor, duly authorized to execute the same in its behalf by Resolution No. approved by the City Council on , and K.A. Hickman Architects & Interior Designers, signing by and through its duly authorized representative, 16 thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. CITY OF ROUND ROCK,TEXAS By: Nyle Maxwell,Mayor ATTEST: By: Christine R. Martinez, City Secretary FOR CITY,APPROVED AS TO FORM: By: Stephan L. Sheets,City Attorney K.A.HICKMAN ARCHITECTS &INTERIOR DESIGNERS By: Keith A. Hickman,AIA,Principal THE TEXAS BOARD OF ARCHITECTURAL EXAMINERS, P.O. BOX 12337, AUSTIN, TEXAS 78711-2337 OR 333 GUADALUPE, SUITE 2-350, AUSTIN, TEXAS 78701-3942, TELEPHONE(512) 305-9000, HAS JURISDICTION OVER INDIVIDUALS LICENSED UNDER THE ARCHITECTS' REGISTRATION LAW,TEXAS CIVIL STATUTES,ARTICLE 249a. 17 DATE: July 8, 2005 SUBJECT: City Council Meeting - July 14, 2005 ITEM: 11.F.1. Consider a resolution authorizing the Mayor to execute a Standard Form of Agreement between Owner and Architect with Standard Form of Architect's Services, and Supplemental Agreement No. 1 with K.A. Hickman Architects & Interior Designers for the design of Fire Station #7. Department: Engineering & Development Services Staff Person: Tom Word, Chief of Public Works Operations Justification: Request for qualifications were sent out to three local architect firms. KA Hickman Architects was chosen to design Fire Station #7. The contract is in the amount of $122,450 with a reimbursable allowance not to exceed $10,000 for the total of $132,450. This contract will include site evaluation, schematic design, site planning, design development, construction documents, bidding, and construction administration. Funding: Cost: $132,450 Source of funds: Capital Project Funds (Self Financed) Outside Resources: KA Hickman Architects & Interior Design Background Information: The new fire station provides Fire and EMS coverage that is needed for a rapidly growing northeast section of Round Rock. Public Comment: N/A EXECUTED DOCUMENT FOLLOWS Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services AIA Document 13141 - 1997 1997 Edition - Electronic Format This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401. Copyright 1917, 1926, 1948, 1951, 1953, 1958, 1961, 1963, 1966, 1967, 1970, 1974, 1977, 1987, ©1997 by The American Institute of Architects. Reproduction of the material herein or substantial quotation of its provisions without written permission of the AIA violates the copyright laws of the United States and will subject the violator to legal prosecution. TABLE OF ARTICLES 1.1 INITIAL INFORMATION 1.2 RESPONSIBILITIES OF THE PARTIES 1.3 TERMS AND CONDITIONS 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 1.5 COMPENSATION AGREEMENT made as of the r'CLI12 LE;C'A; ( 1�day of the month of cri!LU in the year Two Thousand Five. (/n words,indicate day,month and year.) BETWEEN the Architect's client identified as the Owner: (Name,address and other information.) City of Round Rock 221 East Main Street Round Rock,Williamson and Travis Counties,Texas 78664 AIA DOCUMENT B141-STANDARD FORM AGREEMENT- 1997 EDITION-AIA-COPYRIGHT 1997-THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE N.W., WASHINGTON, D.C. 20006-5292. WARNING: Unlicensed photocopying violates U.S.copyright laws and will subject the violator to legal prosecution.This document was electronically produced with permission of the AIA and can be reproduced without violation until the date of expiration as noted below. Electronic Format B141-1997 Page#1 00087956/jkg �P-C'5-C`7-1y- i i F and the Architect: (Name,address and other information.) K.A. Hickman Architects and Interior Designers 1517 East Palm Valley Boulevard Round Rock,Texas 78664 For the following Project: (Include detailed description of Project.) Complete planning civil architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection document production bidding-related services,and construction administration services for the following: Facilities to house Round Rock Fire Station#7 to be located in Round Rock,Texas,such facilities to house and support areas of fire operations and service. Professional services for this Proiect shall include Schematic Design Phase, Design Development Phase, Construction Documents Phase Bidding/Negotiation Phase, Construction Administration Phase, and Warranty Phase services related to the Project. The Owner and Architect agree as follows. ARTICLE 1.1 INITIAL INFORMATION 1.1.1 This Agreement is based on the following information and assumptions. (Note the disposition.for the following items by inserting the requested information or a statement such as "not applicable,""unknown at time of execution"or"to be determined later by mutual agreement.') Architect shall initially furnish Program Development, Site Analysis, Preliminary Plans and Elevations Development,MEP Systems and Structural Selection, Preliminary Estimate of Probable Costs Development, and Schematic Design for the Project. Architect shall be responsible for Schematic Design Phase, Design Development Phase, Construction Documents Phase, Bidding/Negotiation Phase,Construction Administration Phase,and Warranty Phase. 1.1.2 PROJECT PARAMETERS 1.1.2.1 The objective or use is: (Identify or describe,if appropriate,proposed use or goals.) The securing of Architect's professional services for the planning, engineering and designing of a new three-bay fire station of approximately 6,250 square feet to house and support areas of fire operations and service, and the securing of Architect's professional services for subsequent document production, bidding-related services, and construction administration services. 1.1.2.2 The physical parameters are: (Identify or describe,if appropriate,size,location,dimensions,or other pertinent information,such as geotechnical reports about the site.) Round Rock Fire Station#7 is to be sited on property located in Round Rock,Texas. 1.1.2.3 The Owner's Program is: (Identify documentation or state the manner in which the program will be developed.) Program Development, Site Analysis, Preliminary Plans and Elevations Development, MEP Systems and Structural Selection,Preliminary Estimate of Probable Costs Development,and Schematic Design for the Proiect. Schematic Design Phase, Design Development Phase, Construction Documents Phase, Bidding/Negotiation Phase, Construction Administration Phase,and Warranty Phase. 2 1.1.2.4 The legal parameters are: (Identify pertinent legal information,including,if appropriate,land surveys and legal descriptions and restrictions of the site.) 1.1.2.5 The financial parameters are as follows: 1. Amount of the Owner's overall budget for the Project,including the Architect's compensation,is: Owner's overall budget for the Proiect is unknown at this time, and is to be developed and approved in conjunction with receipt of information garnered from the performance of this Agreement. Architect's total compensation for delineated services shall not exceed the sum of One Hundred Twenty-two Thousand Four Hundred Fifty and No/100 Dollars ($122,450.00),plus Reimbursable Expenses in an amount not to exceed Ten Thousand and No/100 Dollars ($10,000.00). Customary reimbursable expenses include travel,copies,reproductions,presentations,telephone,postal or courier services, and other similar expenses. Schematic Design Phase $ 18,367.50 Design Documents Phase $ 18,367.50 Construction Documents Phase $48,980.00 Bidding/Negotiation Phase $ 6,122.50 Construction Administration Phase $ 30,612.50 TOTAL $122,450.00 Of this not-to-exceed total of$122,450.00,the following breakdown applies: Architectural/Structural/MEP Fees $65,700.00 Civil Engineering Fees $35,750.00 [* Includes Edwards Aquifer Recharge Zone additional fee of$3,500.00. If site selected is not over Edwards Aquifer Recharge Zone,the sum of$3,500.00 will be deducted from the total sum of$122,450.00.] Roofing Consultant Fees $ 7,500.00 Landscape Architect Fees $ 6,000.00 IT Consultant Fees $ 2,500.00 Construction Consultant Fees $ 5,000,00 TOTAL $122,450.00 1.1.2.6 The time parameters are: (Identify, if appropriate,milestone dates,durations or fast track scheduling.) Services hereunder shall commence immediately upon receipt by Architect of this executed Agreement. Completion shall be not later than thirty(30)months from date of execution of this Agreement. Other time parameters or adjustments to time parameters may be determined at a later date by mutual agreement of the parties hereto. 1.1.2.7 The proposed procurement or delivery method for the Project is: (Identify method such as competitive bid,negotiated contract,or construction management.) Professional services such as architectural planning will be engaged by negotiated contract. The general contractor for construction will be selected by competitive bidding or other statutorily-allowed alternate delivery method. 3 1.1.2.8 Other parameters are: (Identify special characteristics or needs of the Project such as energy,environmental or historic preservation requirements.) Unknown at this time, 1.1.3 PROJECT TEAM 1.1.3.1 The Owner's Designated Representatives are: (List name,address and other information.) Larry Madsen Liaison Construction Manager 2008 Enterprise Round Rock,Texas 78664 1.1.3.2 The persons or entities, in addition to the Owner's Designated Representative, who are required to review the Architect's submittals to the Owner are: (List name,address and other information.) Jim Nuse City Manager 221 East Main Street Round Rock,Texas 78664 1.1.33 The Owner's other consultants and contractors are: (List discipline and,if known,identify them by name and address.) 1.13.4 The Architect's Designated Representative is: (List name,address and other information) Keith A.Hickman K.A.Hickman Architects&Interior Designers 1517 East Palm Valley Boulevard Round Rock,Texas 78664 1.13.5 The consultants retained at the Architect's expense are: (List discipline and,if known,identify them by name and address) Architectural Services by K.A. Hickman Architects&Interior Designers Structural Engineering by Fisher Hagood Engineers MEP Engineering by HCE Consulting Engineers Roofing Consulting by Austech Roofing Consultants Landscape Architectural Services by Coleman&Associates Civil Engineering by Fisher Hagood Engineers IT Consulting by CoCom Upon execution of this Agreement, Architect agrees that it will submit to City within ten (10)days a list of all additional consultants it intends to utilize, not previously identified in Architect's proposal, delineating their respective tasks. All of Architect's consultants shall be subject to the approval of City,and City reserves the right to reject any consultant. 1.1.4 Other important initial information is: 1.1.5 When the services under this Agreement include contract administration services, the General Conditions of the Contract for Construction shall be the edition of AIA Document A20 eine^*^,;of the date of this A groo. @nt or as"I ,.. as modified between Owner and Contractor. Architect's responsibility to provide services for the construction phase under this Agreement commences with the award of the contract for construction and terminates at the issuance to Owner of the final certificate for Ravment. Duties, responsibilities and limitations of authority of Architect shall not be restricted, modified or extended without written agreement of Owner and Architect with consent of Contractor,which consent shall not 4 be unreasonably withheld. Architect consents to the modifications of AIA Document A201, General Conditions of the Contract for Construction,between Owner and Contractor. 1.1.6 The infonnation contained in this Article 1.1 may be reasonably relied upon by the Owner and Architect in determining the Architect's compensation. Both par-ties," e that sue" infi-1m;ation m Ghange and n tha event, the 0-I.-Mor- and the Ar-ehiteet .;hall negotiate appropriate adjustments in sehodule, compensation and Change i Sen,ieesas ee vVith Para i-7ap" Owner agrees to negotiate compensation to Architect as Additional Services for time Owner directs Architect to spend at the jobsite beyond the contracted construction period. It is expressly understood and agreed by and between the parties hereto that any alteration in schedule compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City Council resolution or City Manager action. ARTICLE 1.2 RESPONSIBILITIES OF THE PARTIES 1.2.1 Owner and Architect shall fully cooperate with one another to fulfill all of their respective obligations required under this Agreement. Both parties shall endeavor during the full term hereof to maintain good working relationships among all members of the Project team. 1.2.2 OWNER 1.2.2.1 Unless otherwise provided under this Agreement, Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project. Owner shall furnish to the Architect,within 15 days after receipt of a written request,information necessary and relevant for the Architect to evaluate,give notice of or enforce lien rights. 1.2.2.2 The 0-i'vniwsh-All pefiojieally update the budget for the Project,ineluding thm pa#ien allega-ted-fqr the Gest of th I'Verk. Tho ownerghall not significantly inoroa";e 6)V-deerease the A-emll budge,the peFtion of the budget allAeated the C-ost of the Wer4E, or-Gentingencies inelud-ed-in--the A-ve-rall budget or-a peFtien of the budget,w4hout the agreement afthe to a eeffespending Ghange in the Pr-ejeet scope and quality. The Owner shall establish and periodically update the budget for the Project,including that portion allocated for the Cost of the Work,Owner's other costs,and reasonable contingencies related to all costs. 1.2.2.3 The Owner's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Owner's behalf with respect to the Project. 'Be Owner or the Owner's Designated 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. 1.2.2.4 The Owner shall furnish the services of consultants other than those designated in Paragraph 1.1.3 or authorize the Architect to furnish them as a Change in Services when such services are requested by the Architect and are reasonably required by the scope of the Project and are approved by Owner. 1.2.2.5 Unless otherwise provided in this Agreement,and if requested in writing,the Owner shall furnish or pay for tests, inspections and reports required by law or the Contract Documents,such as structural,mechanical,and chemical tests,tests for air and water pollution,and tests for hazardous materials. 1.2.2.6 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. 1.2.2.7 The Own Each party shall provide prompt written notice to the Arehiteet other if the 9w;;P either becomes aware of any fault or defect in the Project, including any errors,omissions or inconsistencies in the Architect's Instruments of Service. 1.2.2.8 Owner shall furnish, or direct Architect to obtain at Owner's expense, a certified survey of the site giving, as required, grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments,zoning,deed restrictions,boundaries,contours and other data pertaining to existing buildings or adjacent to the site,other improvements and trees; and full information as to available service and utility lines,both public and private, and test borings,pits,reports and soil bearing values and other necessary operations for determining subsoil conditions. 5 1.2.2.9 Owner will furnish building permits without charge. Electrical, plumbing and other trade permits will be the responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by Owner and are not to be included by Architect in the specifications for the Project. However, Owner agrees to reimburse Architect the actual costs of review fees associated with Texas Building Accessibility reviews. 1.2.2.10 Owner will provide Architect with miscellaneous items such as the Proiect Facility Program two(2)copies of the City of Round Rock General and Supplementary Conditions for Building Construction, Instructions to Bidders, Proposal Forms Wage Rates Contract and Bond Forms Bid Advertisement Form and such other information and materials as may be necessary and practicable for the orderly and expeditious progress of the work and the awarding of the construction contract. To the extent practicable these documents shall be utilized in the preparation of the construction documents. 1.2.3 ARCHITECT 1.2.3.1 The services performed by the Architect,Architect's employees and Architect's consultants shall be as enumerated in Article 1.4 and as enumerated elsewhere herein, in attached and accompanying documents, in supplemental documents, and in related documents. 1.2.3.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. The Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services which initially shall be consistent with the time periods established in Subparagraph 1.1.2.6 and which &#tall may be adjusted,if necessary and approved by Owner,as the Project proceeds.This schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not,except for reasonable cause,be exceeded by the Architect or Owner. 1.2.3.3 The Architect's Designated Representative identified in Paragraph 1.1.3 shall be authorized to act on the Architect's behalf with respect to the Project. 1.2.3.4 The Architect shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such information would violate the law, create the risk of significant harm to the public or prevent the Architect from establishing a claim or defense in an adjudicatory proceeding. The Architect shall require of the Architect's consultants similar agreements to maintain the confidentiality of information specifically designated as confidential by the Owner. 1.2.3.5 Except with the Owner's knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. 1.23.6 The Architect shall review laws,codes,and regulations applicable to the Architect's services. The Architect shall respond in the design of the Project to requirements imposed by governmental authorities having jurisdiction over the Project. 1.2.3.7 The Architect shall be entitled to reasonably rely on the accuracy and completeness of services and information furnished by the Owner. The ^�^t:.o^' '�et Each party shall provide prompt written notice to the O„ other if the Arehit®st either becomes aware of any errors,omissions or inconsistencies in such services or information. ARTICLE 1.3 TERMS AND CONDITIONS 13.1 COST OF THE WORK 1.3.1.1 The Cost of the Work shall be the total cost or,to the extent the Project is not completed,the estimated cost to the Owner of all elements of the Project designed or specified by the Architect. 1.3.1.2 The Cost of the Work shall include the cost at reasonable current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor,plus a reasonable al1w.vanyo for their for Contractor's overhead and profit. in addition, a reasonable all"vinnee for-eentingen 6 1.3.13 The Cost of the Work does not include the compensation of the Architect and the Architect's consultants,the costs of the land,rights-of-way and financing or other costs that are the responsibility of the Owner. 1.3.2 INSTRUMENTS OF SERVICE 1.3.2.1 Drawings, specifications and other documents, including those in electronic form,prepared by the Architect and the Architect's consultants are Instruments of Service for use solely with respect to this Project. The Arehite a-Rd th� A-ro-h-it A-PA's 0--,onsudaaats;sh-A-1-1-h--0 d-6-em---A-d-the au thelf-s and f-p,yAe+s Of theif:F-espeetive ln,;tn-Mants of S ep'iee And shall retai A all a^tho.ro .oa rights inoluding^ep)qights. All Architect's designs and work product under this Agreement including but not limited to Tracings Drawings Estimates, Specifications, Investigations, Studies and other documents completed or partially completed shall be the property of Owner, to be used as Owner desires without restriction on future use; by execution of this Agreement and in confirmation of the fee for services to be paid under this Agreement Architect hereby conveys transfers and assigns to Owner all rights under the Federal Copyright Act of 1976(or any successor copyright statute) as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the Project designs and work product developed under this Agreement. Copies may be retained by Architect. Architect shall be liable to Owner for any loss or damage to any such documents while they are in the possession of or while being worked upon by Architect or anyone connected with Architect,including agents,employees,consultants or subcontractors. All documents so lost or damaged shall be replaced or restored by Architect without cost to Owner. 1.3.2.2 Upon execution of this Agreement, the Architect grants to the Owner a license permission to reproduce the Architect's Instruments of Service selgly for purposes of constructing, using and maintaining the Project, provided that the Owner shall comply with all obligations, including prompt payment of all sums when due, under this Agreement. The Architect shall obtain similar nenewelusive lieenses permission from the Architect's consultants consistent with this Agreement. If and upon the date the Architect is adjudged in default of this Agreement, the Owner is permitted to authorize other similarly credentialed design professionals to reproduce and,where permitted by law,to make changes,corrections or additions to the Instruments of Service sele4y for the purposes of completing,using and maintaining the Project. 1.3.2.3 Except for-the lieenses gmated in Subparagraph 1.3.2.2, no afher- lipen.,;e or right shall be deemed gr-anted 0 implied ^nae•-this Agreement The Owner shall not assign, delegate, sublicense,pledge or otherwise transfer any Wen.,; permission granted herein to another party without the prior written agreement of the Architect. However,the Owner shall be permitted to authorize the Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers to reproduce applicable portions of the Instruments of Service appropriate to and for use in their execution of the Work by license granted in gijbp agr- ..h 1-3.2.21. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is permitted. not to he const^•ea as publication in of to this Projeet or-for-other prej@Gts,unless the 0;.vner obtains the prior-N;T-itten agFeeffl ^r.ho Ar-ehitecet and the A..^hiteet•g consuh-ants. Any unauthorized use of the Instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants. 1.3.2.4 Prior to the Architect providing to the Owner any Instruments of Service in electronic form or the Owner providing to the Architect any electronic data for incorporation into the Instruments of Service,the Owner and the Architect shall by separate written agreement set forth the specific conditions governing the format of such Instruments of Service or electronic data,including any special limitations uses not otherwise provided in this Agreement. 1.3.2.5 All plans and drawings will be prepared and submitted by Architect to Owner for approval on a minimum 24-inch by 36-inch or maximum 32-inch by 42-inch drafting sheet, with all lettering processed in ink or pencil and clearly legible when the sheets are reproduced and reduced to half size. 1.3.2.6 Upon completion of the construction of the Project, Architect shall, within thirty(30) calendar days following final inspection,deliver to Owner the reproducible Record Drawings and Record Specifications as described supplementally herein. In addition,Architect shall submit originals of all documents listed under Section 1.3.2.1 modified to actual as-built conditions as provided by the General Contractor. Compensation therefor will be at standard hourly rates or re-negotiated as a fixed amount at that time. 7 1.3.2.7 Architect shall have no liability for changes made to the drawings by other architects subsequent to the completion of the Project. Any such change shall be sealed by the architect making that change and shall be appropriately marked to reflect what was changed or modified. 1.33 CHANGE IN SERVICES 1.3.3.1 Change in Services of the Architect, including services required of the Architect's consultants, may be accomplished after execution of this Agreement, without invalidating the Agreement, if mutually agreed in writing, if Subparagraph 1.3.3.2. !1;the A-h-sonce of mutual agreement in miting,the-4 rehittBet-sh-all natify the Owne+prior to PFON'iding mich q0P.6ppq. If thp 0I.A.'Aff doems that all or-a part of sueh Change in Setwices is not required,the Owner shall give Pfampt yKitten notipo to ths A rehitect,and the Ar-phiteet shall have no obligation to provide these sffviees. Except foF a ehange du of the A-rehiteet,Change in 90;wipes ofthe Arehiteet shall onfide the Architect to an adjustment in eompensation pursuant to Paragraph 1.5.2,and to any Reimbursable Expenses deser-ibed-in Subparagraph 1.3.9.2 and Paragraph . It is expressly understood and agreed by and between the parties hereto that any alteration in schedule, compensation and Change in Services shall be effected only by Supplemental Agreement hereto. Any such Supplemental Agreement to this contract must be duly authorized by City Council resolution or City Manager action. It is expressly agreed by the parties that, as to services hereunder, the total sum of$122,450.00 plus authorized reimbursable expenses not to exceed the total sun] of$10,000.00 shall represent the absolute limit of Owner's liability to Architect unless same shall be changed by Supplemental Agreement hereto. , to an appropriate,.,1:...+.,, At if;the Architect .l cho .,lo ncompensation. .1 ehange in the instnuetions;or--approvals givm by the Ownef that nocessitate revision';in Inst"Iments ofsen,iee; .4 signifioant ohange in the Project ineluding, but not limited to, size, quality, Complexity, the 'whedille or .7 ohange in the infonn-ation contained-in A#iele 1-47 1.3.4 MEDIATION 1.3.4.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation . If such matter relates to or is the subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation of-by -Arh-itr tier 1.3.4.2 The Owner and Architect shall endeavor to resolve claims,disputes and other matters in question between them by mediation unless the pai4ies mutually agree ath@Fwise, shall be in ao-P-A-VA-Anee 40"ith tho Const-Ruction lndustf�,, Rules„of-the A„mor:,..,. A rl.:+r.,+:,..- A..S,,,i-A6,..,, eRtl, ill ore et Request for mediation shall be filed in writing with the other party to this Agreement and with the hlnffican atienmasse tion quest may be made eenouFFently with the filing of a ao.,,and c r afbi+r,.+:en 1..,+ eh event,mediation shall proceed in advance of arbitFatiee e+legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. 8 1.3.4.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. 1.3.5 ARBITRATION 1.3.5.1 Any Glaim, dispute or A-ther matter in out 4 or-related to this Agreement ShAl he ,;ubjeo to —ar-h-itration. Prior-to arbitration, the pafties shall endonvor-to re-selve disputes by m@diation in ayoprdanvp A,ith Pafagraph lin -1.3.5.2 C-2,1-aims, disputes and othex-m-atters in question between the parties that ar-A Apt by mediation shall he doeided by arbitration whieh, unless the paoies mutually agree ethe4m,ise, shall be in -aecordaneft with the GenstnlotiAn filed in IATitiRg With thO Othff PaFt)'W this Agreement and-vVith the.4 m_e_5;ic;an'A Assp_pi_Atien. 1-J.-S.-I 4 dpmAnd fqr-;ir-hitrAtiAn shall hA mado within a roa,;Anahle*ime pififf the Glaim,dispute of:athef matter-in h-As Affiseffi. In no ewynt shall dis demand hA mado AfteF tho datp when insfitution of legal oF equitable pfeeeedings based on Ne arbitration aFising OUt 4OFFOlating to this Agreement shall inelude,by eonsolidation or-jeinde+er-in any-othef manne+, an additional p"sen or entit�, not a pai--ty to this Agreefflent, except by mitten eonsent eentaining a speeifie re4wpnoe tA thi Agreement and signed by the Qwne+, Arehiteet, and any ath it), sought to be joined. eonsented to by paf4ies to this Agreement shall be speeif4eally enfor-e-e-ah-le in -accordance with applieable law in any eou _13.5.5 , and judgiaent may be entered upon it in rd ,:th applicable l anycourt havingsd:,.tion thereof ., 1.3.5.1 Owner and Architect hereby expressly agree that no claims or disputes between Owner and Architect arising out of or relating to the contract documents or a breach thereof shall be decided by any arbitration proceeding, including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Section 1-14) or any applicable state arbitration statute,except that in the event that Owner is subject to an arbitration proceeding related to the Project,Architect consents to be joined in the arbitration proceeding if Architect's presence is required or requested by Owner for complete relief to be accorded in the arbitration proceeding. 1.3.6 CLAIMS FOR CONSEQUENTIAL DAMAGES 1.3.6.1 The Architect and the Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Paragraph 1.3.8. 1.3.7 MISCELLANEOUS PROVISIONS 1.3.7.1 This Agreement shall be governed by the law of the principal pla f bu-siness of the n h•♦ . unless ethepvise provided in Paragraph 1.4.2 laws of the state of Texas,and venue shall lie in Williamson County,Texas. 1.3.7.2 Terms in this Agreement shall have the same meaning as those in the edition of AIA Document A201, General Conditions of the Contract for Construction, went „f the date „r rhk n ffeement as modified between Owner and Contractor. 1.3.7.3 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run not later than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring after Substantial Completion. In no event shall such statutes of limitations commence to run any later than the date when the Architect's services are substantially completed. 9 1.3.7.4 To the extent damages are covered by property insurance during construction,the Owner and the Architect waive all rights against each other and against the contractors,consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201,General Conditions of the Contract for Construction, eurrentS of the date or this "gree.,en as modified between Owner and Contractor. The Owner or the Architect, as appropriate, shall require of the contractors,consultants,agents and employees of any of them similar waivers in favor of the other parties enumerated herein. 1.3.7.5 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. 1.3.7.6 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 or toxic substances in any form at the Project site. 1.3.7.7 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, 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 in the Owner's promotional materials for the Project. 1.3.7.8 If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. The Architect shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. 1.3.7.9 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 the Owner nor the Architect shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to an institutional lender providing financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under this Agreement.The Architect shall execute all consents reasonably required to facilitate such assignment. 1.3.8 TERMINATION OR SUSPENSION 1.3.8.1 If the Owner fails to make payments to the Architect in substantial compliance with this Agreement, such failure shall may be considered substantial nonperformance and ^^^se-c. .o.....inat:,,., or, at the Arehiteet's option, cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services,prior to suspension of services, the Architect shall give seven fifteen (15) days' written notice to the Owner. In the event of a suspension of services,the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all non-disputed sums due prior to suspension . The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. 19 1 If the reject is suspen ed by the Owner 4:nore than 30 eenspe-tive d s,the Architect shall be eampen.,;ated fiar-se4A,iees perf4med prior-to natiee of sueh suspension. When the Pr-qjeet is resumed,t4e Arehiteet shall be eompPn,,;AtPd 4W ONPORSeS inGUFFO-d-in the inteRzuptien and resumption of the The Ar-ehitoGt',;fe&,;for-the ...7 the ..hall be equitably.,.jested If the Project is suspend-ad "r the A rGhiteet',; ;ep,iges are suspended fi)r more than 90 eon,;Rewivo days, the- krehitec ;t may teFminate this Agreement by giving not less than seVon days'N��itton notiev I R 4 This A gy-eement may be terminated by either paFly upon not le,;,;than seven days' wfittpn nntioe should-the atheF par-ty fail substantially to perfoFM in aceordanee AA,ith the temis of this Agree4:iient through no fault of the paity initiating th tm:ninn ion 1395 ;R-en days' written notioe to the Are iteet . . . This 4 greement may be teFminated by the Owner upon not le,;,;than 10 peffermed prior to teRiiination�togetheF with Reimbursable Expenses then d-up-and-afl T-e-vm-in-ati-on Expenses as defi;;Ad i;; not ethevA,ise plus an amount fi)r the A rehiteet4; ., , r:..:,.,.ted profit on the .,lue o f thta s of pe f f .med by the A.ehiteet .. 1.3.8.2 In connection with the work outlined in this Agreement,it is agreed and fully understood by Architect that Owner may cancel or indefinitely suspend further work hereunder or terminate this contract either for cause or for the convenience of Owner,upon fifteen(15)days' written notice to Architect,with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Architect shall invoice Owner for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Proiect shall become the property of Owner upon termination of this Agreement, and shall be promptly delivered to Owner in a reasonably organized form without restriction on future use. Should Owner subsequently contract with a new architect for continuation of services on the Proiect,Architect shall cooperate in providing information. 1.3.8.3 Nothing contained in Section 1.3.8.2 immediately above shall require Owner to pay for any work which is unsatisfactory as determined by Owner's representative or which is not submitted in compliance with the terns of this Agreement. Owner shall not be required to make any payments to Architect when Architect is in default under this contract,nor shall this section constitute a waiver of any right,at law or at equity,which Owner may have if Architect is in default,including the right to bring legal action for damages or to force specific performance of this Agreement. 1.3.9 PAYMENTS TO THE ARCHITECT 1.3.9.1 Payments on account of services rendered and for Reimbursable Expenses incurred shall be made monthly upon presentation of the Architect's statement of services. 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 has been adjudged to be liable. 1.3.9.2 Reimbursable Expenses are in addition to compensation for the Architect's services and include expenses incurred by the Architect and Architect's employees and consultants directly related to the Project, as identified in the following Clauses: .1 transportation in connection with the Project, authorized out-of-town travel and subsistence, and electronic communications; .3 reproductions,plots,standard form documents,postage,handling and delivery of Instruments of Service; .4 expense afeveAimewadc requiring higher than regular rates ifafl;A_ii_;-e-,d_in advanee by the Owaer3 c renderings,...,.,lel..and-.,aek. requested by the n .6 expense of professional liability insur-anee ded-ioated exphl,;ively to this Project or. the expense- of additional in-surn-nee yeaverage or limits r@quested by the 0-vVner in eXe,@SL; of that npt*nally eai4ied by thR Avohitpot Anti tile .7 reimbursable expenses as designated in Paragraph 1.5.5.; .8 other similar direct Project related expenditures. 1.3.9.3 Records of Reimbursable Expenses,of expenses pertaining to a Change in Services,and of services performed on the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to Owner or Owner's authorized representative at mutually convenient times. 11 1.3.9.4 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, employee retirement plans and similar contributions. ARTICLE 1.4 SCOPE OF SERVICES AND OTHER SPECIAL TERMS AND CONDITIONS 1.4.1 Enumeration of Parts of the Agreement. This Agreement represents the entire and integrated agreement between the Owner and the 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.This Agreement comprises the documents listed below. 1.4.1.1 Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services, AIA Document B141-1997,as herein amended. or- fellows: (List other documents, if any,delineating Architect's scope of services.) 1.4.1.3 Other documents as follows: (List other documents, if any,forming part of the Agreement.) "Supplemental Agreement No. 1"supplementing Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services,AIA Document B141-1997. 1.4.2 Special Terms and Conditions.Special terms and conditions that modify this Agreement are as follows: It is expressly understood and agreed by and between the parties hereto that Architect shall be solely responsible for ensuring that the Project meets all pre-construction, construction, and post-construction requirements imposed by the American Disability Act which are in force and effect during the preparation of Construction Documents by Architect. ARTICLE 1.5 COMPENSATION 1.5.1 For the Architect's services as described herein,compensation shall be computed as follows: Architect's total compensation for services hereunder shall not exceed the sum of $122,450.00 established herein, plus authorized reimbursable expenses in a sum not to exceed$10,000.00,which sum for reimbursable expenses shall include the actual costs of such items as travel, copies, reproductions, presentations, telephone, postal or courier services, and other similar expenses. 1.5.2 If the services of the Architect are changed as described in Subparagraph 1.3.3.1,the Architect's compensation may be adjusted. Such adjustment shall be calculated as described below or, :c.o method of adjustment is indl:..ato.l in this Paragraph 1.5.2,in an equitable mannef. (Insert basis of compensation, including rates and multiples of Direct Personnel Expense for Principals and employees,and identify Principals and classify employees, if required. Identify specific services to which particular methods of compensation apply) 1.5.3 For a Change in Services of the Architect's consultants,compensation shall be computed as a multiple of one(1.00) times the amounts billed to the Architect for such services. 1.5.4 For Reimbursable Expenses as described in Subparagraph 1.3.9.2,and any other items included in Paragraph 1.5.5 as Reimbursable Expenses,the compensation shall be computed as a multiple of one( 1.00)times the expenses incurred by the Architect,and the Architect's employees and consultants. 1.5.5 Other Reimbursable Expenses,if any,areas follows: 12 1.5.6 The rates and multiples for services of the Architect and the Architect's consultants as set forth in this Agreement shall be adjusted in accordance with their normal salary review practices. 1.5.7 An initial payment of Zero and No/100 Dollars($0.00)shall be made upon execution of this Agreement and is the minimum payment under this Agreement. It shall be credited to the Owner's account at final payment.Subsequent payments for services shall be made monthly,and where applicable,shall be in proportion to services performed on the basis set forth in this Agreement. 1.5.8 Payments are due and payable thin 30 days from the date of the Architect's invoice, or not later than the time period required under the Texas Prompt Payment Act, whichever is later. Non-disputed amounts unpaid sixty 60 days after the invoice date shall bear interest at the rate entered below,or in the absence thereof at the legal rate prevailing from time to time at the principal place of business of the Architect. (Insert rate of interest agreed upon.) One and one-half percent(1 '/z%)per month (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Architect's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Specific legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) -1-5.9- If the sepOiees V--A-vefed by this Agvpem-ent ha-ve not bom eampleted within menths of the d--ate-heFeof-,through no 2,;sepies,,;boyand that time shall be eampeasated as provided in Paragraph i.5.2. This Agreement entered into as of the day and year first written above. OWNER ARCHITECT CITY OF ROUND ROCK,TEXAS K.A.HICKMAN ARCHITECTS&INTERIOR DESIGNERS By:_0 By: Keith A.Hickman,AIA,Principal ALAN Mc�RA W, MAyOP- PRO-TEM ATTEST: Christine R.Martinez,City Secretary AFORCAPPROVED AS ORM: Stephan Sheets,City Attorney 13 s SUPPLEMENTAL AGREEMENT NO. 1 THE STATE OF TEXAS § CITY OF ROUND ROCK § KNOW ALL BY THESE PRESENTS: COUNTY OF TRAVIS § COUNTY OF WILLIAMSON § This document is entitled Supplemental Agreement No. 1, and it supplements Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services, AIA Document B 141-1997, for the following Project: Complete planning, civil, architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection, document production, bidding-related services, and construction administration services related to the following: Facilities to house Round Rock Fire Station#7 to be located in Round Rock,Texas, such facilities to house and support areas of fire operations and service, all as are more specifically identified and described in the accompanying AIA Document B 141-1997. This Supplemental Agreement No. 1 .is made and entered into as of the same date of the Agreement it supplements, that being the I y day of •J U L y , 2005, and likewise is by and between the same parties, those being the CITY O RF OF ROCK, a home-rule municipal corporation of Williamson and Travis Counties, Texas (hereinafter referred to as"City" and/or"Owner") and K.A. HICKMAN ARCHITECTS & INTERIOR DESIGNERS, with offices located at 1517 East Palm Valley Boulevard,Round Rock, Texas, 78664(hereinafter referred to as"Architect"). WITNESSETH : WHEREAS, as is recited in the Agreement this document supplements, City intends to design and construct the described project(hereinafter called the"Project"). Architect's services are desired for purposes including but not limited to planning, civil, architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection, document production, bidding- related services, and construction administration services related to the Project. Total compensation for Architect's services under this Agreement shall not exceed the following: $122,450.00,plus reimbursable expenses in an amount not to exceed$10,000.00. WHEREAS, as is recited in the Agreement this document supplements, City desires to contract with Architect for the delineated professional services in connection with design and construction of the Project, and for the administration of the Construction Contract during construction of a portion of the Project, all as previously and hereinafter stipulated and within the limits the City has budgeted or will budget therefor; and WHEREAS, as is stipulated in the Agreement this document supplements, Architect has agreed to provide such professional services for the compensation delineated previously and herein; 00088027/jkg NOW, THEREFORE, City and Architect, in consideration of the terms, covenants and conditions contained in the Agreement this document supplements and herein,hereby agree as follows: ARTICLE I SCOPE OF SERVICES AND COMPENSATION 1.01 Scope. Architect, as an independent contractor and professional consultant in its relationship with the City, shall perform all professional services for the Project as set forth in this Agreement. 1.02 Compensation. City shall compensate Architect in accordance with the terms and conditions as recited in Paragraph 1.1.2.5 of accompanying AIA Document B 141-1997. Unless subsequently changed by additional Supplemental Agreement to this Agreement, duly authorized by City Council Resolution or City Manager action, Architect's total compensation hereunder shall not exceed $122,450.00, plus a not-to-exceed amount of$10,000.00, for approved Reimbursable Expenses. These amounts represent the absolute limit of City's liability to Architect under this Agreement, unless same shall be changed by additional Supplemental Agreement hereto. The times and further conditions of payment shall be as described in Article VI hereof. ARTICLE II ARCHITECT'S SERVICES 2.01 Basic Services. Architect's Basic Services consist generally of the phases described below, and include complete planning, civil, architectural, design, structural, mechanical/electrical/plumbing engineering services, IT, fire protection, document production, bidding-related services, and construction administration services, and such other services as may be necessary to assist the City in the design and construction of the Project, within the limits the City has budgeted or will budget therefor, and in compliance with the Project Facility Program, which is hereby made a part of this Agreement for all purposes. Architect agrees that upon execution of this Agreement, it will submit to City within ten (10) days a list of all additional consultants it intends to utilize, not previously identified in Architect's proposal, delineating their respective tasks. All of Architect's consultants shall be subject to the approval of the City through its City Manager, and City reserves the right to reject any consultant. Architect shall perform all work hereunder in a manner satisfactory and acceptable to the City, represented by its City Manager or his designee, hereinafter referred to as "Director." A Performance Schedule shall be agreed to by Architect and Director, and Architect agrees to use its best efforts to complete all services hereunder in accordance with such Performance Schedule. All services shall be performed to the highest professional standard. 2.02 Schematic Design Phase. Architect shall provide the following Schematic Design Phase Services: (1) Programming, including holding pre-development conference with City; holding meetings with firefighters, as deemed necessary by City; developing preliminary draft program, and reviewing same with City; and finalizing draft program. 2 (2) Schematic Design including developing site analysis; developing conceptual plans, and reviewing same with City; refining conceptual plans and developing elevations; developing cost estimate; and reviewing Schematic Plans with City. 2.03 Design Documents Phase. Architect shall provide the following Design Documents Phase Services: (1) Architect shall prepare Design Documents based on the approved Schematic Design Documents and updated budget for the Cost of the Work, said Design Documents to include adequate specifications for elements of the Project for consideration and approval by Director. Five (5) copies each of said documents will be submitted to City, each consisting of drawings and other documents to fix and describe the size, cross sections and character of the Project as to architectural, structural, mechanical and electrical systems, materials, and such other essentials as may be necessary and appropriate. Said documents shall illustrate and describe the refinement of the design of the Project, establishing the scope, relationships, forms, size and appearance of the Project by means of plans, sections and elevations, typical construction details, and equipment layouts. Said documents shall include outline specifications that identify major materials and systems and establish in general their quality levels. The Design Document Phase shall be completed within the agreed Performance Schedule. (2) Architect shall submit to City a Revised Statement of Probable Construction Cost in a form acceptable to Director. Any variance in the estimated construction costs that will adversely affect the established Project Budget will be submitted to Director with appropriate comments and recommendations prior to beginning the Construction Documents Phase. 2.04 Construction Documents Phase. Architect shall provide the following Construction Documents Phase Services: (1) Architect shall prepare from the approved Design Development Documents and updated budget for the Cost of the Work, for consideration of and approval by Director, Construction Documents, which documents shall set forth in detail the requirements of the entire Project, including the necessary bidding information prepared in such a way to allow City, if it so desires, to advertise for the award of one or more contracts for the construction and completion of the entire Project, or any phase thereof, and Architect shall assist City in preparation of the Bidding Forms, shall utilize without modification City's standard General and Supplementary General Conditions, and shall draft all Special Conditions of the Contract. City's standard form of Contract between City and the Contractor shall also be utilized, along with City's form of Bid Bond, Performance Bond and Payment Bond. Architect shall also compile the Project Manual that includes the Conditions of the Contract for Construction and Specifications and may include bidding requirements and sample forms. City shall provide all standard documents for Architect to include in the Project Manual. (2) Architect shall furnish City in writing a revised Statement of Probable Construction Cost, indicating cost changes resulting from changes in Project requirements or general market conditions, in a form acceptable to Director. 3 (3) Architect shall file five (5) complete sets of proposed Construction Documents with Director for review and official approval prior to the advertisement of bids for the construction of the Project, and within the agreed Performance Schedule following approval of the Design Documents. Following approval, Architect shall prepare and have on hand additional sets as needed for bidding purposes. Should additional sets be required, Architect will be reimbursed for same as an eligible reimbursable expense,upon approval in advance by City. Architect shall also file with Director at said time, the following items: (a) Tracing of the Project Title Sheet, signed by Architect, with seal affixed. (This tracing shall be returned to Architect to print contract documents when the signatures of City officials have been properly affixed). (b) Two(2)copies of detailed cost estimates in a form acceptable to City. (c) Four (4) unbound copies of the approved Project Construction Manual for subsequent binding with signed construction contracts. The Project Construction Manual shall include General and Supplementary General Conditions; Specifications and Special Provisions; Advertisement, Instructions to Bidders and Bid Proposal Form; City's Bid Bond, Contract, Performance and Payment Bond Forms; approved Wage Rates; Federal regulations if applicable to the Project; and other required documents for construction of the Project. (4) Architect shall be solely responsible for obtaining the prior approval of the Texas Department of Licensing and Regulation prior to submittal of all Construction Documents to City for approval. Any fees charged by the Department for this approval shall be paid by Architect as a reimbursable expense. 2.05 Bidding/Negotiation Phase. Architect shall provide the following Bidding/Negotiation Services: Following City's approval of the Construction Documents and of the latest Statement of Probable Construction Cost, Architect shall assist City in awarding a construction contract following legal public bid requirements. Architect shall arrange for procuring the reproduction of Bidding Documents, distributing same to prospective bidders, and maintaining records. Owner shall be responsible for payment for the costs of reproduction of such documents, either directly or through reimbursement to Architect. During the bid process,Architect shall assist City as follows: (1) Jointly conducting pre-bid conferences, including on-site visits as required, to endeavor to assure that bidders understand the Construction Documents, the various on-site conditions, and the coordination and scheduling requirements. (2) Preparing responses to questions from prospective bidders, and providing clarifications and interpretations of the Bidding Documents to all prospective bidders in the required form of addenda to Contract Documents. (3) Assisting in the opening of bids, tabulation and evaluation of bids received, and advising on award of the contract. 4 (4) Jointly conducting pre-award conferences where necessary. Architect's assistance to City shall include submitting written reviews and recommendations for awards based upon the acceptability of bids; and, if required by City, more detailed analyses of specific bids. Reviews shall also consider the responsiveness of bids and their conformity with Bid Documents. 2.06 Construction Administration Phase. Architect shall provide the following Construction Administration Phase Services: The Construction Phase will commence with the award of the first Construction Contract and will terminate following the final one-year warranty inspection of the completed Project, correction of all defects in Project materials and workmanship, and resolution of all Project-related claims and disputes. During the Construction Phase, Architect shall provide the following services: (1) Architect shall provide administration of the Construction Contract as set forth in the Construction Documents, specifically the General and Supplementary General Conditions. Architect's assigned authority thereunder will not be substantially modified without Architect's written consent. (2) Architect shall review properly prepared, timely requests by the Contractor for additional information about the Contract Documents. A properly prepared request for additional information about the Contract Documents will be in a form prepared or approved by Architect and will include a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. (3) If deemed appropriate by Architect, Architect will on Owner's behalf prepare, reproduce and distribute supplemental Drawings and Specifications in response to requests for information by the Contractor. (4) Interpretations and decisions of Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, Architect will endeavor to secure faithful performance by both Owner and the Contractor, will not show partiality to either, and will not be liable for the results of interpretations or decisions so rendered in good faith. (5) Architect shall render initial decisions on claims, disputes or other matters in question between Owner and the Contractor as provided in the Contract Documents. However, Architect's decisions on matters relating to aesthetic effect will be final only if consistent with the intent expressed in the Contract Documents. (6) Architect shall report to Owner all deviations from the Contract Documents and most recent construction schedule submitted by the Contractor. However, Architect will not be responsible for the Contractor's failure to perform work in accordance with requirements of the Contract Documents. Architect will be responsible for Architect's acts or omissions,but will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the work. 5 (7) Architect will at all times have access to the work wherever it is in preparation or in progress. (8) Owner will endeavor to communicate with the Contractor through Architect about matters arising out of or relating to the Contract Documents. Communications by and with Architect's subconsultants will be through Architect. (9) Architect,as a representative of City, shall advise and consult with Director and will keep City informed in writing through him of the progress of the Project, including percent complete on a monthly basis, during the Construction Phase; and after issuance of the "work order"to proceed with the work, all of City's instructions to its Contractors will be issued through Architect. Architect will have authority to act on behalf of Owner only to the extent provided in this Agreement unless otherwise properly modified by written amendment. (10) Architect shall provide, during construction, adequate and competent on-site construction observation, periodically visiting the site to the extent necessary to personally familiarize itself with the progress and quality of the work, and to determine if the work is proceeding in accordance with the Contract Documents. Architect's site observations may be conducted with Owner's designated representative to check conformance of the work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of work to be completed or corrected. Field Reports of each visit shall be prepared by Architect and submitted to City. Architect shall employ all reasonable measures to safeguard City against defects and deficiencies in the work of the Contractor. Architect shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the work. However, Architect will immediately inform Director whenever defects and deficiencies in the work are observed, or when any observed actions or omissions are undertaken by the Contractor which are not in the best interests of City and the Project. (11) Based on such observations at the site and on the Contractor's Application and Certificate for Payment, Architect shall determine, monthly,the amount owing to the Contractor and shall certify and forward the Contractor's Application and Certificate for Payment to Director for approval and payment. These certifications shall constitute a representation by Architect to City, based on observations at the site and other data comprising the application for payment, that the work has progressed to the point indicated; that to the best of Architect's knowledge, information and belief, the quality of the work is in accordance with the Contract Documents (subject to an evaluation of the work as a functioning whole upon substantial completion, to the results of any subsequent tests required by the Contract Documents, to minor deviations from the Contract Documents correctable prior to Project completion, and to any specific qualifications stated in the Certificate); and that the Contractor is entitled to payment in the amount certified. (12) Architect shall have authority to reject work which does not conform to the Contract Documents. Whenever Architect considers it necessary or advisable, Architect will have authority to require 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 Architect nor a decision made in good faith either to 6 exercise or not exercise such authority shall give rise to a duty or responsibility of Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees or other persons or entities performing portions of the work. (13) Architect shall make recommendations on all claims and disputes of City or the Contractor relating to the execution and progress of the work or the interpretation of the Contract Documents, based upon such review and analysis by Architect as may reasonably be required. In the event of litigation, where Architect is named as an additional party with the City, such assistance will include the availability of knowledgeable witnesses in the employ of Architect for expert testimony. (14) Architect shall use his best efforts to promptly review and approve or reject shop drawings, product data and samples and other submissions of the Contractor for conformance only with the design concept of the Project and with the information given in the Contract Documents. Architect shall establish and implement precise procedures, to be approved by City's Director, for expediting the processing and approval of these submissions without delay. Prompt review by Architect of submissions is of prime importance to City and an absolute necessity under the time constraints of the Project. (15) Architect shall prepare Change Orders and/or Construction Change Directives to the construction contract, in six (6) copies, after review and approval by City. Each Change Order shall be specific and final as to prices and extensions of time, with no reservations or other provisions allowing for future additional money or time as a result of the particular changes identified and fully compensated in the Change Order. Architect's compensation for preparation of Change Orders, if any, shall be determined by Section 2.09(1)below. (16) Architect shall conduct inspections to determine the dates of substantial completion and final completion, shall receive written guarantees and related documents assembled by Contractor for submittal with the final Certificate of Payment, and shall prepare and present final Certificate for Payment to Director for City's approval and payment. In addition, Architect shall make inspection of the Project at least thirty(30)days before the expiration of the one(1)year warranty contained in the Contractor's Performance Bond. (17) Architect shall conduct regularly scheduled progress meetings with City, the Contractor and major Subcontractors. Minutes of same shall be prepared by Architect with copies submitted to City's Director. (18) Architect shall have authority to order minor changes in the construction work, consistent with the Contract Documents, and not involving an adjustment in the Contractor's bid price or an extension of the Project Schedule. Such changes shall be accomplished by Field Order. In addition, Architect may issue written Field Orders which interpret the Plans and Specifications, with copies submitted to City's Director. (19) Architect shall assemble and deliver to City a set of reproducible Record Construction Drawings showing significant changes in the work during the construction process and final location of mechanical and electrical service lines and outlets, based upon marked- up prints of drawings and other data furnished by the Contractor to Architect. Architect shall provide Record Construction Specifications which will identify the changes in the 7 specifications on a sheet, which sheet will be inserted at the beginning of each section to which they pertain. (20) Architect shall obtain from the Contractor and forward to Owner the following: (1) consent of surety or sureties, if any, of reduction in or partial release of retainage or the making of final payment; and (2) affidavits, receipts, releases and waivers of liens or bonds indemnifying Owner against liens. 2.07 Warranty Phase. Architect shall assist Owner in scheduling corrections to be made by the Contractor during the warranty period. During the eleventh month following completion of the prime general contract, Architect will arrange for a warranty inspection tour of the entire Project by authorized representatives of City, the Subconsultants and of each prime contractor engaged on the Project. Architect shall then prepare a list of work which needs to be done by each prime contractor to satisfy that prime contractor's warranty obligations to City. For any non-warranty involvement of Architect, payments shall be made based upon the Hourly Rate Schedule contained in this Agreement. 2.08 Project Representation Beyond Basic Services. In the event that circumstances should develop whereby continuous, full-time representation at the Project site is required, the conditions under which such representation shall be furnished and the Project Representatives selected, employed and directed shall be governed by an additional written Supplemental Agreement between City and Architect. 2.09 Additional Services. Architect shall perform Additional Services, as requested by City, after a not-to-exceed amount has been mutually agreed upon in writing by Director and Architect. Where City Council or City Manager authorization is required, Architect shall not proceed until the appropriate Resolution or directive for such Additional Services has been delivered. The following services are not covered under Article II, which defines and outlines Architect's Basic Services. If any of these Additional Services are authorized in writing by Director in advance of their performance, they shall be paid for in the manner agreed to at the time of authorization. (1) Preparing Change Orders and supporting data and/or revising previously approved plans when the changes in approved Plans and Specifications are required by the City. If changes are required to be made because of error, oversight, clarification, discrepancy, or budget overruns in the work of Architect, City shall not be liable to compensate Architect for Additional Services or expenses in such connection. (2) Providing consultation concerning replacement of any Project work damaged by fire or other cause during construction, and furnishing professional services as may be required in connection with the replacement of such work, unless damage was the result of Architect's error. (3) Providing other extraordinary professional services over and above the contract requirements, where required and requested by City, including extraordinary professional services which might result if the City decides to"fast-track"the Project. ARTICLE III CITY'S RESPONSIBILITIES 3.01 Full information.City shall provide full information regarding requirements for the Project. 8 3.02 Designate representatives. City shall designate, when necessary, representatives authorized to act in its behalf. City shall examine documents submitted by Architect and render decisions pertaining thereto promptly to avoid unreasonable delay in the orderly progress of Architect's work. 3.03 Survey.City shall furnish,or direct Architect to obtain at City's expense, a certified survey of the site, giving, as required, grades and lines of streets, alleys, pavements and adjoining property; rights-of- way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries, contours and other data pertaining to existing buildings or adjacent to the site, other improvements and trees; and full information as to available service and utility lines, both public and private, and test borings, pits, reports and soil bearing values and other necessary operations for determining subsoil conditions. 3.04 Tests and inspections. City shall furnish, or pay for structural, mechanical, chemical, soil mechanics, and other laboratory tests, reports and inspections as required by law or the Contract Documents. 3.05 Permits. City will furnish the building permit without charge. Electrical, plumbing and other trade permits will be the responsibility of the construction contractor. Any charges which may be assessed for tap fees will be paid by City and are not to be included by Architect in the Specifications for the Proj ect. 3.06 Miscellaneous items. City will also provide Architect with such items as the Project Facility Program; two (2) copies of the City of Round Rock General and Supplementary General Conditions for Building Construction, Instructions to Bidders, Proposal Forms, Wage Rates, Contract and Bond Forms, Bid Advertisement Form, and such other information and materials as may be necessary and practicable for the orderly and expeditious process of the work and the awarding of the Construction Contract. To the extent practicable,these documents shall be utilized in the preparation of the Construction Documents. ARTICLE IV FIXED LIMIT OF TOTAL BUDGETED CONSTRUCTION COST 4.01 Budgeted Construction Costs. The fixed limit of total Budgeted Construction Cost for this Project has not been fully ascertained as of the date of making of these Contract Documents. Architect, in consultation with City, shall determine what materials, equipment, component systems and types of construction are to be included in the Contract Documents, and will make reasonable adjustments in the scope of the Project to bring it within the limits when fixed. With City approval, Architect may also include in the Contract Documents alternate bids to adjust the construction cost to the fixed limit. If the lowest responsible bid is within the fixed limit of total Budgeted Construction Cost for the Project, or Architect's latest detailed estimate of Probable Construction Cost is still less than the fixed limit of total Budgeted Construction Cost for the Project, City shall pay Architect fees for Basic Services in accordance with this Agreement. 4.02 Procedures if bid(s) exceed Budgeted Construction Costs. If the lowest responsible bid exceeds its portion of the fixed limit of total Budgeted Construction Cost for the Project, and as a result thereof, or otherwise, the latest estimate of Probable Construction Cost exceeds such fixed limit of total Budgeted Construction Cost for the Project, City at its option may either(1) give written approval of an increase in such fixed limit, with no obligation to increase Architect's fee, or (2) authorize rebidding within a reasonable time, or(3) cooperate in revising the Project scope and quality as required to reduce the Probable Construction Cost. In the case of(3), Architect, without additional charge, shall immediately modify the Drawings and Specifications as necessary to bring the Project cost within the budgeted fixed 9 limit, or within any higher fixed limit subsequently authorized by City. Providing this service shall be the limit of Architect's responsibility in this regard, and having done so,Architect shall be entitled to his fees in accordance with this Agreement. ARTICLE V REIMBURSABLE EXPENSES 5.01 Reimbursable Expenses. Reimbursable Expenses are in addition to the fees for Basic and Additional Services and include actual expenditures at actual costs made by Architects, their employees, or their consultants in the interest of the Project for the incidental expenses set forth below. Such expenses must be authorized in advance. 5.02 Travel, phone, postage, reproduction, etc. When authorized in advance by City, the following shall be reimbursable: reasonable transportation and living expenses of principals and employees when traveling in connection with the Project outside of Williamson County, Texas, essential long distance calls and telegrams, fees paid for the securing of approval of authorities having jurisdiction over the Project,postage, and reproduction of Drawings and Specifications, excluding copies for Architect's office use and the required number of sets at each phase of the work for City's review. 5.03 Overtime. If authorized in advance by City,the expense of extraordinary overtime work, not due to Architect delays, requiring higher than regular rates, and renderings, slides, photographs or models for the City's use shall be reimbursable. 5.04 Texas Department of Licensing and Regulation fees. Any fees charged to Architect by the Texas Department of Licensing and Regulation for review and approval of design or development documents shall be reimbursable. 5.05 Texas Natural Resource Conservation Commission fees. Any fees charged to Architect by the Texas Natural Resource Conservation Commission for Water Pollution Abatement Plan and for Sewage Collection Fee shall be reimbursable. 5.06 Special Consultants. If the employment of special consultants for specialized design services is authorized by City, (for example, special lighting and landscape consultants, special soil mechanics engineers, communications consultants, etc.), fees for other than normally required architectural, structural, mechanical, electrical and civil engineering services and the Basic Services hereinbefore defined, shall be reimbursable. ARTICLE VI PAYMENTS TO THE ARCHITECT 6.01 Basic Services. Payments on account of Architect's Basic Services shall be made monthly in proportion to the degree of completion of each phase, but not to exceed the following percentages of the respective fees at the completion and approval of each phase of the work: I. FEE APPORTIONMENT BY PHASE (a) Schematic Design Phase $ 18,367.50 (b) Design Documents Phase $ 18,367.50 (b) Construction Document Phase $48,980.00 10 (c) Bidding/Negotiation Phase $ 6,122.50 (d) Construction Administration Phase $ 30,612.50 TOTAL SERVICES $122,450.00 As to the Construction Administration Phase fee apportionment of$30,612.50, Architect shall invoice for equal monthly payments based upon the contractually stipulated Construction Period. 6.02 Reimbursable Expenses and Additional Services. Payments for authorized Reimbursable Expenses and Additional Services for Architect, as hereinbefore referred to, shall be made following presentation,review and approval of Architect's detailed invoice in triplicate. 6.03 Deductions. No deductions shall be made from Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to Contractors. 6.04 Additions. No additions shall be made to Architect's compensation based upon Project construction claims,whether paid by City or denied. 6.05 Abandonment. If any work designed or specified by Architect during any phase or subphase is abandoned or suspended, in whole or in part, Architect is to be paid for the services performed on account of it prior to receipt of written notice from City through its Director of such abandonment or suspension. 6.06 Invoices. Architect's invoices to City shall provide complete information and documentation to substantiate Architect's charges, and shall be in a form to be specified by Director. All payments to Architect shall be made on the basis of the invoices submitted by Architect and approved by Director. Such invoices shall conform to the schedule of services and costs in connection therewith set out hereinabove. All Reimbursable Expenses shall be clearly shown. Should additional backup material be requested by Director, Architect shall comply promptly with such request. In this regard, should Director determine it necessary, Architect shall make all records and books relating to this Agreement available to City for inspection and auditing purposes. 6.07 Payment of Invoices. City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Architect and to adjust the same to meet the requirements of the Agreement. Following approval of invoices, City will endeavor to pay Architect promptly, but not later than the time period required under the Texas Prompt Payment Act; however, under no circumstances shall Architect be entitled to receive interest on payments which are late because of a good faith dispute between Architect and City or because of amounts which City has a right to withhold under this Agreement or state law. 6.08 Offsets. City may, at its option, offset any amounts due and payable under this Agreement against any debt (including taxes) lawfully due to City from Architect, regardless of whether the amount due arises pursuant to the terms of this Agreement or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court. ARTICLE VII ARCHITECT'S ACCOUNTING RECORDS 7.01 Accounting Records. Records of Architect's Consultant and Reimbursable Expenses pertaining to the Project,and records of accounts between City and Architect shall be kept on a generally recognized 11 accounting basis and shall be available to City or its authorized representatives at mutually convenient times. ARTICLE VIII TERMINATION AND DEFAULT 8.01 Termination. In connection with the work outlined in this Agreement, it is agreed and fully understood by Architect that Director may cancel or indefinitely suspend further work hereunder or terminate this Agreement either for cause or for the convenience of City, upon fifteen(15) days' written notice to Architect,with the understanding that immediately upon receipt of said notice all work and labor being performed under this Agreement shall cease. Architect shall invoice City for all work satisfactorily completed and shall be compensated in accordance with the terms of this Agreement for all work accomplished prior to the receipt of said notice. No amount shall be due for lost or anticipated profits. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of City upon termination of this Agreement, and shall be promptly delivered to City in a reasonably organized form without restriction on future use. Should City subsequently contract with a new architect for continuation of services on the Project, Architect shall cooperate in providing information. 8.02 Default.Nothing contained in Section 8.01 above shall require City to pay for any work which is unsatisfactory as determined by Director or which is not submitted in compliance with the terms of this Agreement. City shall not be required to make any payments to Architect when Architect is in default under this Agreement, nor shall this Article constitute a waiver of any right, at law and at equity, which City may have if Architect is in default, including the right to bring legal action for damages or to force specific performance of this Agreement. ARTICLE IX GENERAL, SUPPLEMENTARY AND SPECIAL CONDITIONS; CONTRACT ADMINISTRATION 9.01 General, Supplementary and Special Conditions. City of Round Rock - Supplementary General Conditions to AIA Document A201, "General Conditions of the Contract for Construction", are to be used by Architect without modification; however, City may,upon prior consultation, approve of any changes that may be necessary for specific cases or instances. Any special conditions pertaining to the Project that are approved by City will be included under the Special Conditions portion of the Construction Documents. 9.02 Contract Administration. This Agreement shall be administered on behalf of City by its City Manager, and Architect shall fully comply with any and all instructions from Director. Any dispute arising hereunder shall be submitted to Director,whose decision in the matter shall be final and binding. ARTICLE X RESPONSIBILITY FOR WORK,INDEMNIFICATION AND INSURANCE 10.01 Architect's Responsibility for Work. Approval by City shall not constitute nor be deemed a release of the responsibility and liability of Architect, its employees, subcontractors, agents and consultants for the accuracy and competency of their Designs, Working Drawings, Specifications or other documents and work; nor shall such approval be deemed to be an assumption of such responsibility by 12 City for any defect, error or omission in the Designs, Working Drawings, and Specifications or other documents prepared by Architect,his employees, subcontractors, agents and consultants. 10.02 Indemnification (Damage Claims). Architect agrees to defend, indemnify and hold City, its officers, agents and employees, harmless against any and all claims, lawsuits, judgments, costs and expenses for personal injury (including death), property damage or other harm for which recovery of damages is sought, suffered by any person or persons, that may arise out of or be occasioned by Architect's breach of any of the terms or provisions of this Agreement, or by any negligent act or omission of Architect, his officers, agents, associates, employees or subconsultants, in the performance of this Agreement; except that the indemnity provided for in this paragraph shall not apply to any liability resulting from the sole negligence of City, its officers, agents, employees or separate contractors, and in the event of joint and concurrent negligence of both Architect and City, responsibility and indemnity, if any, shall be apportioned comparatively in accordance with the laws of the State of Texas, without, however, waiving any governmental immunity available to City under Texas law and without waiving any defenses of the parties under Texas law. The provisions of this paragraph are solely for the benefit of the parties hereto and not intended to create or grant any rights, contractual or otherwise, to any other person or entity. 10.03 Indemnification (Patent and Copyright Claims). Architect agrees to completely defend and indemnify City, its officers, agents and employees, against a claim that any of the Designs, Plans or Specifications prepared by Architect, its employees, associates or subconsultants, pursuant to this Agreement infringe a U.S. patent or copyright directly, indirectly or contributorily, regardless of whether or not City is proven to have actively induced or contributed to the infringement. Architect will pay any and all resulting costs, damages and attorney's fees finally awarded,provided that: (1) City promptly notifies Architect in writing of the claim; and (2) Architect has sole control of the defense and all related settlement negotiations. (a) If Architect defends City against such claims, the City Attorney of City shall be kept informed of settlement negotiations, and shall execute any settlement agreement reached by Architect on City's behalf. (b) Architect's defense and indemnification under this section is conditioned on City's agreement that if any of the designs, plans or specifications, become, or in Architect's opinion are likely to become, the subject of such a claim, City will permit Architect, at Architect's option and expense, either to procure the right for City to continue using the designs,plans or specifications or to replace or modify the same so that they become non-infringing; and if neither of the foregoing alternatives is available on terms which are reasonable in Architect's judgment, City,to the extent City is legally able to do so, will cease using the designs, plans or specifications on written request of Architect, in which instance City has the sole option to either require Architect to perform new design work at Architect's sole expense, or to terminate this Agreement. (c) Architect has no liability under this section for any claim of infringement based upon the modification or alteration of the designs, plans or specifications prepared under this Agreement subsequent to the Project by City, or by any engineering consultant subsequently employed by City. 13 (d) The foregoing states the entire obligation of Architect with respect to infringement of patents and copyrights. 10.04 Insurance. Architect, at Architect's sole cost, shall purchase and maintain during the term of this Agreement the minimum professional liability insurance coverage in the amount of One Million Dollars ($1,000,000.00) from a company authorized to do insurance business in Texas and otherwise acceptable to City. 10.05 Subconsultant Insurance. Without limiting any of the other obligations or liabilities of Architect, Architect shall require each subconsultant performing work under this Agreement to maintain during the term of the Contract, at the subconsultant's own expense, the same stipulated minimum insurance required in Section 10.04 above, including the required provisions and additional policy conditions as shown below in Section 10.06, unless specifically waived by the City Manager. As an alternative, Architect may include its subconsultants as additional insureds on its own coverages as prescribed under these requirements. Architect's certificate of insurance shall note in such event that the subconsultants are included as additional insureds and that the Architect agrees to provide Workers' Compensation coverage for the subconsultants and their employees. Architect shall obtain and monitor the certificates of insurance from each subconsultant in order to assure compliance with the insurance requirements. Architect must retain the certificates of insurance for the duration of this Agreement, and shall have the responsibility of enforcing these insurance requirements among its subconsultants. City shall be entitled, upon request and without expense, to receive copies of these certificates of insurance. 10.06 Insurance Policy Endorsements. Each insurance policy under paragraph 10.04 shall include the following conditions by endorsement to the policy: (1) Each policy shall require that thirty (30) days prior to the expiration, cancellation, non- renewal or any material change in coverage, a notice thereof shall be given to City by certified mail to: City Manager, City of Round Rock 221 East Main Street Round Rock, Texas 78664 Architect shall also notify City, within 24 hours of receipt, of any notices of expiration, cancellation,non-renewal,or material change in coverage it receives from its insurer. (2) Companies issuing the insurance policies shall have no recourse against City for payment of any premiums or assessments for any deductibles which all are at the sole responsibility and risk of Architect. (3) The Term "City" or "City of Round Rock" shall include all authorities, Boards, Commissions, Departments, and officers of City and the individual members, employees and agents thereof in their official capacities, and/or while acting on behalf of the City of Round Rock. (4) The policy clause "Other Insurance" shall not apply to any insurance coverage currently held by City, to any such future coverage, or to City's Self-Insured Retentions of whatever nature. 14 10.07 Cost of Insurance. The cost of all insurance required herein to be secured and maintained by Architect shall be borne solely by Architect, with certificates of insurance evidencing such minimum coverage in force to be filed with the City. ARTICLE XI COMPLIANCE WITH LAWS,CHARTER AND ORDINANCES,ETC. 11.01 Compliance with Laws. Architect, its consultants, agents, employees and subcontractors shall comply with all applicable Federal and State Laws, the Charter and Ordinances of the City of Round Rock, as amended, and with all applicable rules and regulations promulgated by all local, State and National boards, bureaus and agencies. Architect shall further obtain all permits and licenses required in the performance of the professional services contracted for herein. 11.02 Taxes. Architect will pay all taxes, if any, required by law arising by virtue of the services performed hereunder. City is qualified for exemption pursuant to the provisions of Section 151.309 of the Texas Limited Sales, Excise, and Use Tax Act. ARTICLE XII TERM 12.01 Term.Unless sooner terminated in accordance with the applicable provisions hereof, or extended by mutual agreement approved by City's Director, the term of this Agreement shall be from the date hereof until final completion of the Project and all architectural/engineering and construction administration services in connection therewith, including the final one(1) year warranty inspection, and resolution of any outstanding Project-related claims or disputes. 12.02 Project Performance Schedule. Architect understands that the Project Performance Schedule is of critical importance, and agrees to undertake all necessary efforts to expedite the performance of services required herein, so that construction of the Project will be commenced as scheduled. In this regard, Architect shall proceed with sufficient qualified personnel and consultants necessary to fully and timely accomplish all services required under this Agreement in the highest professional manner. ARTICLE XIII FINANCIAL INTEREST PROHIBITED,CONFIDENTIALITY 13.01 Financial Interest Prohibited. Architect covenants and represents that Architect, its officers, employees, agents, consultants and subcontractors will have no financial interest, direct or indirect, in the purchase or sale of any product, materials or equipment that will be recommended or required for the construction of the Project. 13.02 Confidentiality. Architect's reports, evaluations, designs, drawings, data, and all other documentation and work developed by Architect hereunder shall be kept confidential, and shall not be disclosed to any third parties without the prior written consent and approval of City's Director. ARTICLE XIV GENERAL PROVISIONS 14.01 Time is of the Essence. Architect understands and agrees that time is of the essence and that any failure of Architect to complete the services for each phase of this Agreement within the agreed Project 15 Performance Schedule will constitute a material breach of this Agreement. Architect shall be fully responsible for its delays or for failures to use his best efforts in accordance with the terms of this Contract. Where damage is caused to City due to Architect's failure to perform in these circumstances, City may withhold, to the extent of such damage, Architect's payments hereunder without waiver of any of City's additional legal rights or remedies. 14.02 Force Majeure.Neither City nor Architect shall be deemed in violation of this Agreement if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given, and all reasonable efforts undertaken to mitigate its effects. 14.03 Assignment. The parties each hereby bind themselves, their successors, assigns and legal representatives to each other with respect to the terms of this Agreement. Architect shall not assign, sublet or transfer any interest in this Agreement without prior written authorization of City's Director. 14.04 Amendments. This Agreement, representing the entire agreement between the parties, may only be amended or supplemented by mutual agreement of the parties hereto in writing. 14.05 Enforcement and Venue. This Agreement shall be enforceable in Round Rock, Williamson County, Texas, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein, exclusive venue for same shall lie in Williamson County, Texas. This Contract shall be governed by and construed in accordance with the laws and court decisions of the State of Texas. 14.06 Notices. All notices and correspondence to City by Architect shall be mailed or delivered as follows: City Manager,City of Round Rock 221 East Main Street Round Rock,Texas 78664 and to: Stephan L. Sheets, City Attorney 309 East Main Street Round Rock,Texas 78644 All notices and correspondence from City to Architect shall be mailed or delivered to the Architect as follows: Keith A. Hickman K.A. Hickman Architects& Interior Designers 1517 East Palm Valley Boulevard Round Rock, Texas 78664 IN WITNESS WHEREOF, the City of Round Rock has caused this Contract to be signed in its corporate name by its Mayor, duly authorized to execute the same in its behalf by Resolution No. r7-I q-I Ir I approved by the City Council on i U LV /1-I 0 0 , and K.A. Hickman Architects & Interior Designers, signing by and through its duly authorized representative, 16 thereby binding the parties hereto, their successors, assigns and representatives for the faithful and full performance of the terms and provisions of this Contract. CITY OF RO D ROCK,TEXAS By: Rt.1}N me&gnL ), mayoz P,eo-7Em ATTEST: By: 0 l MA,b/ Christine R. Martinez, City Secretary FOR CITY, P ROVED AS T FORM: By: Sheets, City Attorney K.A. HICKMAN ARCHITECTS & INTERIOR DESIGNERS Keith A. Hickman,AIA, Principal THE TEXAS BOARD OF ARCHITECTURAL EXAMINERS, P.O. BOX 12337, AUSTIN, TEXAS 78711-2337 OR 333 GUADALUPE, SUITE 2-350, AUSTIN, TEXAS 78701-3942, TELEPHONE (512) 305-9000, HAS JURISDICTION OVER INDIVIDUALS LICENSED UNDER THE ARCHITECTS' REGISTRATION LAW, TEXAS CIVIL STATUTES,ARTICLE 249a. 17