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HomeMy WebLinkAboutCC RES 94-059 RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE AN AGREEMENT WITH AN ARCHITECT • Meeting Sheet IIIIIIVIIIVIIIVIIIVIIIVIIIIIIIIIII 103460 Box: 26 Folder: RES 1994 Document: CC RES 94059 RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE AN AGREEMENT WITH AN ARCHITECT t t CITY OF ST. ANTHONY RESOLUTION 94-059 A RESOLUTION AUTHORIZING THE MAYOR AND CITY MANAGER TO EXECUTE AN AGREEMENT WITH AN ARCHITECT BE IT RESOLVED, that the City Council of the City of St. Anthony hereby authorizes the Mayor and City Manager to execute the Agreement Between Owner (City of St. Anthony) and Architect (Williams/O'Brien Associates, Inc.) on behalf of the City. Adopted this day of L� 1994. Mayor ATTEST: i City Clerk Reviewed for administration: City pager 1/4/95 CONTRACT FOR ARCHITECTURAL SERVICES This Agreement is entered into as of December 13, 1994, by and between the CITY OF ST. ANTHONY, a municipal corporation under the laws of the State of Minnesota ("Owner"), and WILLIAMS-O'BRIEN ASSOCIATES INC., a Minnesota corporation ("Architect"). A. The City Council of the City, by proper action duly adopted at its meeting on December 13, 1994, did authorize a contract with Architect for the performance of architectural and engineering services for the preparation of plans for a new City Hall and Community Center (the "Project"), and if the City proceeds with construction of the Project, for the observation of the construction thereof, at the fee set forth in this Agreement. B. The parties wish to set forth in this Agreement the terms under which Architect will provide such services to the City. NOW, THEREFORE, in consideration of the covenants, terms, conditions and agreements hereinafter contained, it is mutually agreed by and between the parties hereto as follows: • ARTICLE 1. DEFINITIONS. 1.1 The "Architect" means the party identified as such in the first paragraph of this Agreement, and is referred to throughout this Agreement as if singular in number and neuter in gender. 1.2 "Contract" means the construction contract to be entered into between the City and the Contractor and covering the Work to be completed by the Contractor pursuant to the Contract Documents. 1.3 "Contract Documents" means collectively the Contract, together with the Project manual, Drawings, Specifications, and all other documents, addenda and modifications describing the Work to be completed pursuant to the Contract. 1.4 "Contractor" means that person, firm or entity selected by the City to complete the Work pursuant to the Contract Documents. The Contractor is referred to throughout this Agreement as if singular in number and neuter in gender. 1.5 "Drawings" means collectively all Drawings for the Project which are a part of the Contract Documents. • 1.6 The "City" means the City of St. Anthony and is referred to throughout this iAgreement as if singular in number and neuter in gender. The term City means the City or its authorized representatives. 1.7 "Progress Schedule" means the schedule attached hereto as Exhibit "A" as modified and supplemented by the City and the Architect for the construction and completion of the Project. 1.8 "Project" means the total construction of which the Work performed under the Contract Documents may be the whole or a part, as more fully described on Exhibit "B" attached hereto, as the same may be modified by the City. 1.9 "Project Budget" means a budget for the Project, with line items and detail as established by the City. Any modifications to the Project Budget shall require the City's approval. 1.10 "Site" means the land on which the Project is to be located. 1.11 "Specifications" means all specifications for the Project and all other documents prepared by the Architect (other than the Drawings) which set forth in detail the requirements for the construction of the Project. 1.12 "Subcontractor" means any subcontractor, laborer, materialman or supplier of a • Contractor(s) (or of any other Subcontractor). 1.13 "Work" means the completed construction required by the Contract Documents, and including all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction. The Contractor(s) and Subcontractors will be required under the Contract Documents to furnish or cause to be furnished all labor, equipment, machinery, tools, materials and appurtenances necessary to complete the Work required by the Contract Documents. ARTICLE 2. PROTECT CONSTRUCTION COST. 2.1 Project Construction Cost, as herein referred to, means the total cost of the Work, but does not include any payments made to the Architect or any other consultants or engineers, costs of movable furniture and fixtures, or costs relating to acquisition or testing of the Site. 2.2 Project Construction Cost shall be based upon one of the following sources with precedence in the order listed: • -2 2.2.1 Lowest bona fide Contractor's proposal received for any or all portions of the • Project and acceptable to City. 2.2.2 The Project Budget. 2.2.3 The Architect's latest Statement of Probable Project Construction Cost based on current area, volume or other unit costs. 2.3 When labor or material is furnished by the City, the Project Construction Cost shall include such labor and material at current market cost. 2.4 As part of its Basic Services, the Architect shall consult with the City regarding the Project Budget. As part of its Basic Services, the Architect shall assist in analyzing the City's detailed breakdown of cost and shall make recommendations at the City's request. ARTICLE 3. ARCHITECT'S BASIC SERVICES. 3.1 GENERAL 3.1.1 The Architect shall consult with the City and attend such coordination and planning meetings and/or conferences as are needed to ascertain the requirements • of the Project. The Architect understands and agrees that the City will be involved in the decision-making processes with the Architect throughout the design and construction of the Project. City's involvement will include the technical and administrative aspects of design and construction, provided, the City shall not have authority to direct changes in the technical aspects of design, or changes that may affect code compliance, structural integrity, mechanical or electrical system performance or weather proofing. Architect's Basic Services shall not include meeting time in excess of 50 hours. 3.1.2 All engineering Drawings shall be prepared under the supervision of a Minnesota registered engineer in the appropriate division of engineering and shall bear the seal or certification of that engineer. The Architect will not retain the services of any engineers without prior approval of the City, which shall not be unreasonably delayed or denied. The City hereby approves the engineers listed in Exhibit _ hereof. All engineers retained by Architect for the Project will attend Contractor's coordination meetings held at regular intervals during the course of construction, and such engineers shall make periodic observations of the portions of the Work designed by them. Structural engineers shall check the placement of reinforcing steel before structural concrete is poured. • -3- 3.1.3 The Architect agrees to use all reasonable care and diligence to perform its • Work in a skillful manner, and the acceptance of the Architect's Work by the City does not act as a release of the Architect from its obligations and responsibilities under this Agreement. 3.1.4 The Architect's Basic Services consist of all architectural and engineering services attendant to the phases described in this Agreement, including structural, mechanical, electrical, HVAC, plumbing, fire protection/life safety. The services of all engineers and consultants retained by the Architect will be considered a part of the Basic Services provided by the Architect, and the Architect will be responsible to the City for the services of such engineers and consultants. All of the Architect's Basic Services will be provided in accordance with the Progress Schedule, but the Architect will not be responsible for delays beyond its control. 3.1.5 The Architect shall review the Drawings and Specifications with the appropriate governmental authorities with regard to compliance with applicable laws, ordinances and building codes during the various design phases. Prior to the release of any Drawings and Specifications for bidding purposes, the Architect shall submit to the City a statement that the Architect has endeavored to prepare the Drawings and Specifications in accordance with all applicable laws, ordinances, and codes. 3.1.6. The Architect shall prepare and furnish to the City a memorandum of each • meeting with the City, Contractors, building officials, and others regarding the Project. 3.1.7 The Architect agrees to cooperate with the City up to the expiration of the guarantee periods as set forth in the Specifications and to visit the site once within 30 days before the expiration of such guaranty period, at City's request, to confirm without additional cost to the City, Contractor(s) compliance with said guarantees. 3.2 SCHEMATIC DESIGN PHASE 3.2.1 The Architect shall review the program developed by the City to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the City. The Architect shall deliver to the City an outline of the information that the Architect requests to be provided by the City in order for the Architect to prepare the Schematic Design Documents. 3.2.2 Based on the mutually agreed upon program and Project Budget requirements, the Architect shall prepare, for approval by the City, Schematic Design Documents consisting of Drawings and other documents illustrating the scale and relationships of the Project components. • -4- 3.2.3 The Architect shall submit to the City for approval a Statement of Probable Project Construction Cost based on current area, volume or other unit costs. If the Probable Project Construction Cost exceeds the Project Budget, the City shall authorize an increase in the Project Budget or agree with the Architect to reasonable adjustments to the Project Program. 3.3 DESIGN DEVELOPMENT PHASE 3.3.1 The Architect shall proceed with the Design Development Phase upon receipt of approval by the City of Schematic Design Documents and Probable Construction Cost. The Architect shall prepare from the approved Schematic Design Documents, for approval by the City, the Design Development Documents consisting of plans, elevations and other Drawings, and outline Specifications, to fix and illustrate the size and character of the entire Project in its essentials as to kinds of materials, type of structure, mechanical and electrical systems and such other Work as may be required. 3.3.2 These Design Development Documents will be in accordance with the statement of needs furnished by the City and the Project Budget. The development of such Drawings shall be continued by the Architect until they meet with the reasonable approval of the City and of all agencies of the State of Minnesota and other governmental agencies having jurisdiction over the Project, from which approval is mandatory according to law. The City and the Architect shall cooperate with each other in reconciling the statement of needs furnished by the City with the Project Budget. The Architect shall provide the City with an updated Statement of Probable Construction Costs. The Architect shall not proceed with the preparation of construction Drawings until the Design Development Drawings and the updated Statement of Probable Construction Cost have been approved in writing by the City and the Project has been released by the City for preparation of Construction Drawings. It is understood that the Architect does not guarantee the accuracy of the estimates of cost. If the Probable Construction Cost exceeds the Project Budget, the City shall authorize an increase in the Project Budget or agree with the Architect to reasonable adjustment to the Project Program. 3.4 CONSTRUCTION DOCUMENTS PHASE 3.4.1 The Architect shall prepare from the approved Design Development Documents and Project Budget and program as modified, working Drawings and Specifications setting forth in detail the Work required for the architectural, structural, mechanical, electrical, service-connected equipment and Site Work, and the necessary bidding information, General Conditions, Supplementary General Conditions, and Special Conditions of the Contract. -5- 3.4.2 Before the Construction Documents are complete the Architect shall have prepared a detailed analysis of Probable Project Construction Cost establishing unit costs estimates of various components of the Project. The Architect shall keep the City informed, in writing, of any adjustments to previous Statements of Probable Project Construction Cost indicated by changes in scope, requirements or market conditions, and shall furnish the City a revised estimate of construction costs upon completion of Construction Documents. If the revised estimate exceeds the Project Budget, the Architect will recommend reductions in the Project scope. 3.4.3 The Drawings and Specifications shall be prepared by the Architect in accordance with the local building ordinances and the regulations of the authorities of the State of Minnesota having jurisdiction. The Architect shall submit all Drawings and Specifications to all public authorities having jurisdiction and shall obtain their approval. 3.4.4 The Architect shall prepare plans, Specifications and Contract Documents in such form that independent bids may be obtained for mechanical, electrical or other normally separable parts of the Project, in the discretion of the City. 3.4.5 The Architect agrees to include provisions for alternate bids so as to meet the Project Budget, as modified by the City from time to time, or to revise plans and Specifications to meet the cost at no additional fees to the City, provided bids are taken within 2 months of the date of the Architect's final estimates, and provided • further that the City has agreed in writing to adjustments to the Project Budget or program at each state of design. 3.4.6 During the course of construction, Architect shall cooperate with the City and Contractor in preparation of marked-up prints, "as-built" Drawings and other data necessary for documentation of changes in Work. 3.5 CONSTRUCTION PHASE--GENERAL ADMINISTRATION OF CONSTRUCTION CONTRACTS 3.5.1 The Construction Phase will commence with the award of the Contract or Contracts for the Project, and will terminate when final payment is made by the City to the Contractor(s). 3.5.2 After all Drawings and Specifications are approved by the City and all other public authorities having jurisdiction, whose approval is necessary and requisite by law, the Architect shall not authorize any changes without the written approval of the City. 3.5.3 Unless otherwise provided, the Architect shall provide administration of the Contract Documents to the extent provided by the General Conditions of the -6- Contract for Construction, AIA Document A201. Architect shall check, evaluate tests when necessary, and approve samples, schedules, shop Drawings and other submissions only for conformance with the design concept of the Project and for compliance with the information given by the Contract Documents, prepare change orders and assemble written guarantees required of the Contractors. 3.5.4 The Architect and the engineers employed by the Architect shall make periodic visits to the Site to determine if the Work is proceeding in accordance with the Contract Documents. On the basis of observations at the Site, the Architect will keep the City informed of the progress of the Work and shall endeavor to guard the City against defects and deficiencies in the Work of the Contractor. 3.5.5 The Architect shall, immediately upon the discovery of any defects or deviations from the Drawings and-Specifications, report the same to the City and shall, at the same time, advise the City of the corrective orders or instructions which were given to the Contractors. 3.5.6 The Owner shall require the Contractors to deliver to the Architect at the start of the Work a coordinated schedule of the Work, including anticipated purchases and delivery dates of large items of equipment, the date on which the building is expected to be enclosed, and when the permanent heating plant must be placed in operation. The Owner shall require the Contractor(s) to keep such schedule current with the status of the Work. The Contractor's schedule of Work shall be the basis on which payments to the Contractor(s) are made. The Owner shall require the Contractor(s) to provide a sufficiently detailed schedule of values of the Work to assist in accurately determining the status of the Work. The Architect shall not be responsible for the Contractor's schedule or timely performance of Contractor's Work. 3.5.7 The Architect will review applications for payment submitted by the Contractor and certify the amount owing to the Contractor(s) and will issue Certificates for Payments in such amounts. These Certificates will constitute a representation to the City, based on such visits and the data comprising the Application for Payment, that the Work has progressed to the point indicated. 3.5.8 By issuing a Certificate for Payment, the Architect will also represent to the City that, to the best of its knowledge, information and belief based on what its observations have revealed, the quality of the Work is in accordance with the Contract Documents. Architect will conduct inspections to determine the dates of substantial and final completion and issue a final Certificate for Payment. 3.5.9 The Architect shall be a representative of the City during the Construction Phase, and shall advise and consult with the City. The Architect shall provide advice and recommendations to the City and Contractor regarding coordination of -7- Work. Instructions to the Subcontractors shall be forwarded through the Contractor. The Architect shall have authority to act on behalf of the City only to the extent provided in the Contract Documents unless otherwise modified by written instrument. The Architect is an independent contractor and shall not in any way be considered an agent or employee of the City. 3.5.10 The Architect shall provide construction administration, including Site visits and written field reports for each Site visit, and Certificates for Payment as required to fulfill the Architect's responsibilities and duties as set forth in this Agreement and as required by good practice, by the Contract Documents (to the extent not inconsistent with this Agreement), by applicable law. All Site visits and reports are included in Basic Services unless made for the purpose of Additional Services. The reports shall include any defects in construction or deviations from the Drawings and Specifications observed by Architect in the course of Architect's observation of the Contractor's Work and any corrective orders given to the Contractor(s). 3.5.11 The Architect shall act as an interpreter of the requirements of the Contract Documents and, when requested by the City, the judge of the performance thereunder by both the City and the Contractor. The Architect shall render interpretations necessary for the proper execution or progress of the Work with reasonable promptness on written request of either the City or the Contractor, and shall render written decisions, as promptly as practicable, on claims, disputes, and other matters in question between the City and the Contractor relating to the execution or progress of the Work or the interpretation of the Contract Documents. 3.5.12 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in written or graphic form. 3.5.13 The Architect's decisions in matters relating to artistic effect shall be rendered only after consultation with and concurrence of the City and shall be final if consistent with the intent of the Contract Documents. 3.5.14 When the Architect determines on the basis of an observation that the Work or designated portion thereof is substantially complete as defined in the Contract Documents, it will then prepare on AIA Form G704, a Certificate of substantial completion together with Architect's Statement to the City, which together shall establish the date of substantial completion, shall state the responsibilities of the City and the Contractor for security, maintenance, heat, utilities, damage to the Work, and insurance, shall fix the time within which the Contractor shall complete the items listed therein, and shall state (1) to the best of the Architect's knowledge, information and belief that the Project has been substantially completed in accordance with the plans and Specifications for the Project, and (2) the Project is in compliance with applicable codes, regulations and requirements of the -8- • governmental authorities having jurisdiction over the design and construction of the Project. 3.5.15 Architect shall make the observations necessary and required by the Contract Documents for the determination of Substantial Completion (as defined in the Contract Documents) within 15 working days after receipt from the Contractor of the requests, notifications and documentation required under the Contract Documents. Architect shall deliver to the City the requested Certificate of Substantial Completion with its defined punch list or its objections thereto within 10 working days after receipt of said requests, notifications and documentation. 3.5.16 Upon receipt of written notice that the Work is ready for final acceptance and upon receipt of a final Application for Payment, the Architect will make such observation and, when it finds the Work acceptable under the Contract Documents and the Work required by the Contract Documents fully performed, it shall promptly issue a final Certificate for Payment stating that to the best of its knowledge, information and belief, and on the basis of its observations, the Work has been completed in accordance with the terms and conditions of the Contract Documents and that the amounts found to be due the Contractor, and noted in said final Certificate, are due and payable. The Architect's final Certificate for Payment will constitute a further representation that the conditions precedent to the Contractor being entitled to final payment as set forth in the Contract Documents • have, to the best of the Architect's knowledge, information and belief, been fulfilled. 3.5.17 Architect shall make the observations necessary and required by the Contract Documents for the determination of final completion (as defined in the Contract Documents) within 10 working days after receipt from the Contractor of the requests, notifications, and documentation required under the Contract Documents. Architect shall deliver the requested final Certificate for Payment with its defined punch list or its objections thereto within 10 working days after receipt of said requests, notifications, and documentation. 3.5.18 From time to time there may be several different Contractors performing the Work, or certain portions of the Work may be performed by the City's own forces. The Architect shall assist the City and the Contractor in preparing schedules to coordinate such activities. 3.5.19 The Architect shall submit to the City written explanations of any change orders to the Contract(s) if those change orders result from errors or omissions relating to the Drawings and Specifications. The Architect shall be responsible for any additional costs to the City which result from errors or omissions in the Drawings or Specifications if those errors or omissions were caused by the Architect. • -9- 3.5.20 No changes in Drawings or Specifications approved by the City shall be • permitted without the City's prior written consent. ARTICLE 4. ARCHITECT'S ADDITIONAL SERVICES. 4.1 As soon as practicable after receiving the Statement of Project Requirements from the City, the Architect shall, with the cooperation of the City, prepare a time schedule of planning design and review activities of the Architect, engineers, the City, and all others from whom service or information is required throughout each design phase of the Project. 4.2 The Architect accepts the responsibility for the payment of normal engineering services, including electrical, mechanical and structural, and civil engineers employed by it in the preparation of the Drawings and Specifications and the construction of the proposed Project. The Architect may provide services of special consultants if authorized in writing by the City. The Architect will be reimbursed by the City for said services. 4.3 The Architect, in cooperation with the City's representative, shall determine the valuation of the Work of any Contractor when only partially done. 4.4 If more extensive representation at the Site than is described under • Subparagraph 3.5.4 is required, and if the City and Architect agree, the Architect shall provide one or more Project Representatives to assist the Architect. Such Project Representatives shall be selected by the Architect, and approved by the City, employed and directed by the Architect, and the Architect shall be compensated therefore as mutually agreed between the City and the Architect in writing. The duties, responsibilities and,limitations of authority of such Project Representatives shall be set forth in writing. The Architect shall endeavor to provide further protection for the City against defects in the Work through the Project Representative, but the furnishing of such Project representation shall not make the Architect a guarantor of the Contractor's(s') performance of the Work in accordance with the Contract Documents. If a Project Representative is provided, the Architect will prepare and deliver to the City on a weekly basis reports of the daily observations of the Project Representative. 4.5 The Architect shall furnish to the City, at the City's expense, a complete set of reproducible prints of completed working Drawings reproduced on approved material, and a copy of the structural calculations. 4.6 The Architect, at its expense, shall furnish Drawings and Specifications required by public agencies having jurisdiction, and shall furnish the City triplicate sets of Drawings and Specifications at each phase of design for the City's review and • -10- approval. Reproduction costs for bidding purposes shall be reimbursed to the SArchitect by the City. The number of Drawings and Specifications reproduced for bidding purposes shall be determined by the Architect and the City. 4.7 No such Additional Services shall be commenced by Architect without an estimate of the cost thereof by the Architect and the City's prior written authorization to proceed. ARTICLE 5. THE OWNER'S RESPONSIBILITIES. 5.1 The City shall provide full information as to its requirements for the Project, including, without limitation, a Project Schedule, Project Budget and Statement of Project requirements. The Architect may rely on all information provided by the City. 5.2 The City will appoint an individual to be the City's representative at the Site (the "City Representative"). The Architect and its consultants shall work cooperatively with the City Representative and his inspectors to facilitate the implementation of the City's participation in, and inspection of, the Project. The City will be actively involved in the Project. Contractor's submittals such as Shop Drawings, Product Data and Samples shall be routinely routed through the City • Representative for concurrence before the Architect returns them to the Contractor. Such submittals without the City's Stamp of Approval shall be invalid. The Architect may ask the City Representative for verbal approval of routine submittals. Such verbal approval is valid only when backed by follow-up written approval. The Architect and its consultants shall make themselves available to the City Representative so that a timely resolution of possible deficiencies can be effected with a minimum of disruption to the Project. The City Representative has the authority to ask the Architect to reject Work which does not conform to the Contract Documents. If the Architect chooses not to honor such request, it shall provide the City with a timely written explanation of its actions. In all cases the City Representative shall deal only through the Architect. 5.3 The City shall, so far as the Work under this Agreement may require, furnish the Architect or direct the Architect to obtain at the City's expense: A. A complete and accurate certified survey of the Project Site, giving as required: (1) The boundaries of the Site. -11- (2) A complete cross-section contour survey of the Site with • sufficient detail as is necessary for the Architect to design the Project to be erected thereon. (3) Location and character of any existing buildings now on Site (including buildings and structures to be removed). (4) Grades and lines of streets, curbs, pavements, walks, drives and adjoining properties. (5) The rights, restrictions and easements, and full information, including location and depths of all aqueducts, cesspools, sewers, water, gas and electrical service lines, on the Site and in the streets adjoining and adjacent to the Site. (6) The points of the compass. B. The test borings and pits. The Architect shall be fully responsible for the selection and determination of the location and number of such test borings and pits. 5.4 The City shall be responsible, through its duly authorized representatives, for the audit of all accounts presented for payment. This shall not relieve the Architect • of the primary obligation to correctly certify as to the correctness of estimates and payments due on account as the Work progresses and is completed. 5.5 If the City observes or otherwise becomes aware of any defect in the Project, the City shall give prompt written notice thereof to the Architect. 5.6 Notwithstanding any other provision of this Agreement, the City shall not assume the responsibilities of the Architect nor shall the Architect presume that the City has any knowledge or expertise in any area of the Work. Neither any action or inaction by the City with respect to the construction of the Work shall relieve the Architect of its responsibilities under this Agreement or the Contract Documents. 5.7 The City shall provide the Architect with timely approvals and responses to requests for information and shall not unreasonably delay the progress of the Work. ARTICLE 6. PAYMENTS TO THE ARCHITECT. 6.1 Payments on account of the Architect's Basic Services and Reimbursable Expenses shall be made monthly in proportion to services performed to increase the • -12- compensation for Basic Services and Reimbursable Expenses to the percentages at • the completion of each phase of the Work shown on Exhibit "C" attached hereto. 6.2 If the Project is suspended for more than 3 months, or abandoned in whole or in part, the Architect shall be paid its fees for services performed prior to receipt of written notice from the City of such suspensions or abandonments. 6.3 Compensation for Additional Services shall be as follows: 6.3.1 Payments for Additional Services to the Architect including revisions requested by the City to previously approved Drawings and Specifications shall be made monthly within 30 days after presentation of the Architect's statement for services rendered. 6.3.2 Principal's and employees' time shall be computed at a multiple of 2.5 times their Direct Personnel Expense. Direct Personnel Expense shall include cost of salaries, and of mandatory and customary costs and benefits such as taxes, insurances, sick leave, holidays, vacations, and pensions. 6.3.3 At the City's request, the Architect shall provide the City with detailed accountings of the direct salaries, hourly rates and benefits included within Direct Personnel Expense. The Architect's current schedule of Direct Personnel Expenses Rate is attached hereto as Exhibit "D". At the City's request, Architect will provide • the City with detailed accountings of such costs. 6.4 No deduction shall be made from the Architect's compensation on account of penalty, liquidated damages or other sums withheld from payments to Contractor(s), except those for which the Architect is held legally liable or which are caused by Architect's failure to perform its obligations under this Agreement. ARTICLE 7. ARCHITECT'S ACCOUNTING RECORDS. Records of the Architect's Direct Personnel, consultant and Reimbursable Expense pertaining to this Project and records of accounts between the City and the Contractor shall be kept on a generally recognized accounting basis and shall be available to the City or his authorized representatives at mutually convenient times for a period of 3 years after completion of the Project. -13- • ARTICLE 8. TERMINATION OF AGREEMENT. This Agreement may be terminated by either party upon 7 days' written notice by registered mail should the other party fail substantially to perform in accordance with its terms through no fault of the other. This Agreement may be terminated by the City at any time, without cause, upon at least 15 days written notice to the Architect. In the event of termination due to the fault of others than the Architect or by the City without cause, the Architect shall be paid for services performed to the termination date. ARTICLE 9. OWNERSHIP OF DOCUMENTS. 9.1 Drawings and Specifications as instruments of service are the property of the City, whether the Project for which they are made be constructed or not. 9.2 In the event that this Agreement is terminated, including any termination by the City with or without cause, the City shall have the right, itself or through its agents or designees, to use the Drawings, Specifications and Contract Documents for completion of the Project; provided: 9.2.1 The City shall, to the fullest extent allowed by law, indemnify, defend, and hold harmless Architect against all liability, including without limitation attorneys' • fees, arising from the use of the Drawings, Specifications, design documents or any other information prepared or provided by the Architect without the Architect's involvement or express consent. 9.2.2. The Architect shall not be responsible for Work performed on the basis of the Drawings, Specifications, design documents or any other information provided or prepared by the Architect after the termination, suspension or abandonment of this Agreement, and any warranties, representations or indemnifications provided in this Agreement by the Architect shall not apply to Work performed without Architect's involvement. ARTICLE 10. SUCCESSORS AND ASSIGNS. The Architect and the City each binds itself, and its successors and assigns to the other party to this Agreement, and to the successors and assigns of such other party in respect to all covenants of this Agreement. It is expressly understood and agreed that this Agreement is a contract for professional services and the Architect shall not have the right to join with other architects or to subcontract, transfer or assign the architectural services provided for in this Agreement, unless the written consent and approval of the City is first obtained. In the event the City consents to the • -14- assignment, subletting or transfer of this Agreement by the Architect, or the City • consents to and approves the joinder of any architect or architects as partner or partners of the Architect in the performance of this Agreement, the City hereby reserves unto itself the exclusive right to impose any limitations, reservations or conditions which it may, in its sole discretion, deem advisable. Such limitations, reservations or conditions shall be in the form of an endorsement hereon or supplemental agreement to this Agreement, and shall be executed by all parties of interest therein and herein. ARTICLE 11. INSURANCE. Architect shall purchase and maintain insurance as provided in Exhibit "E". Certificates of such insurance, acceptable to the City, shall be filed with the City prior to commencement of the Project. The certificates shall contain a provision that coverage afforded under the policy shall not be canceled until at least 30 days' prior written notice has been given to the City. ARTICLE 12. REIMBURSABLE EXPENSES. 12.1 "Reimbursable Expenses" are in addition to the compensation for Basic and Additional Services provided for under this Agreement and include actual and . reasonably necessary expenditures made by the Architect in the interest of the Project and in performing services requested by the City for the expenses listed in the following Subparagraphs: 12.1.1 Air travel shall be tourist class, unless approved by the City in advance of travel. 12.1.2 Lodging and subsistence shall be at "standard" commercial rates for the locale, unless this type of accommodation is not available on a timely basis or unless otherwise approved by the City in advance of travel. 12.1.3 Expense of reproductions, photographs, postage and handling of Drawings, Specifications and other documents. 12.1.4 Expense of data processing and the actual operating expenses of CAD equipment, in either case, when used in connection with Additional Services. 12.1.5 If requested in writing in advance by the City, additional expense only of overtime requiring higher than regular rates. 12.1.6 Expense of renderings, models and mock-ups requested by the City. -15- 12.1.7 Expense of any additional insurance coverage or limits, including professional liability insurance, requested by the City in excess of that required under this Agreement. 12.1.8 If their employment is authorized in writing in advance by the City as an amendment to this Agreement, the professional fees and other related expenses of special consultants retained by the Architect to assist with the Project. 12.1.9 The Architect will be reimbursed by the City for any plan checking fees or building permit fees required to be paid to governmental agencies by the Architect. 12.1.10 Expenses reasonably incurred in connection with the Architect's provision of Additional Services pursuant to this Agreement. 12.1.11 The current rates for the foregoing Reimbursable Expenses are set forth on Exhibit "F" attached hereto. Architect shall obtain the City's prior written approval of estimated Reimbursable Expenses. ARTICLE 13. MISCELLANEOUS PROVISIONS. 13.1 This Agreement shall be governed by the law of the State of Minnesota. 13.2 Terms used in this Agreement, unless otherwise defined herein, or unless inconsistent or in conflict with the provisions of this Agreement, shall have the same meanings ascribed to such terms in the Contract Documents. 13.3 The City and the Architect waive all rights against each other and against the Contractors, consultants, agents, and employees of the other for damages recovered from any insurance during construction as set forth in the Contract Documents. The City and the Architect each shall require appropriate similar waivers from their Contractors, consultants, and agents. 13.4 Each of the Exhibits attached to this Agreement is hereby incorporated by reference and made a part of this instrument as if fully set forth herein. 13.5 The remedies provided to the City pursuant to the terms of this Agreement are cumulative and not exclusive of any other remedies available at law, in equity or otherwise. 13.6 The Architect and the City agrees that all contracts and agreements which either enters into with subcontractors, agents and employees furnishing services or materials in connection with the Project or the services to be performed by the -16- Architect under this Agreement shall be consistent with this Agreement and shall to the extent necessary impose appropriate obligations of the Architect or City, as the case may be, under this Agreement upon such Contractors, agents and employees. This shall not be deemed to require such parties to provide the insurance which the Architect is required to provide under this Agreement. 13.7 The Architect agrees from time to time at the request of the City to execute a "Lien Waiver" in the form attached hereto as Exhibit "G" or such other form as may be reasonably required by any Lender. 13.8 This Agreement represents the entire integrated Agreement between the City and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. 13.9 This Agreement may be amended only by written instrument signed by both the City and the Architect. ARTICLE 14. INDEMNIFICATION. Architect hereby agrees to and shall at all times, to the fullest extent provided by law, pay, protect, defend, indemnify and hold the City and its agents, employees, successors and assigns wholly harmless from and against any losses, damages, expenses, costs (including court costs and reasonable attorney's fees to the extent awarded by a court of competent jurisdiction), claims, demands, injuries, deaths or suits by any person or persons, arising out of or resulting from any negligent or wrongful act, error or omission by the Architect or any of its agents, consultants, servants, employees or invitees. ARTICLE 15. NOTICE. When it is provided that notice, demand, request, or other communication shall be given or served on another party hereto, such notice, demand, request, or other communication shall be effective when sent by electronic facsimile or by air express, or when deposited in the United States mail, registered or certified, postage prepaid and addressed as follows: If to the City, at: City of St. Anthony 3301 Silver Lake Road St. Anthony, MN 55418 Attn: Mr. Michael J. Morrison City Manager -17- If to the Architect, at: Williams-O'Brien Associates Inc. 1111 Third Avenue South Minneapois, MN 55404 Attn: -, Lm eS 0` f�Yle f Either party may change such address by notice to the other as herein provided. ARTICLE 16. STANDARD OF PROFESSIONAL SERVICES. The Architect, by execution of this Agreement, represents that it is familiar with the requirements of the Project and contracts that it is possessed of that degree of care, learning, skill, and ability which is ordinarily possessed by other members of its profession employed on similar projects in major metropolitan areas of the United States and further contracts that in the performance of the duties herein set forth he will exercise such degree of care, learning, skill, and ability as is ordinarily employed by architects under similar conditions and like circumstances. The Architect will review and become familiar with the City's requirements for and intended use of the Project, and the Architect agrees that the Project, as designed and described by or under the direction of the Architect pursuant to the final plans and Specifications and working Drawings approved by the City, will satisfy all such requirements and be suitable for such intended use to the extent that the City has defined that use • through the approved Project Budget, Schedule and program. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written. CITY OF ST. ANTHONY By Clarence J. Rani llo Its Mayor By icha . Mornson Its City Manager WILLIAMS-O'BRIEN ASSOCIATES INC. By • is -18- EXHIBITS EXHIBIT A Progress Schedule EXHIBIT B Project EXHIBIT C Schedule of Payments for Basic Services EXHIBIT D Architect's Direct Personnel Expenses Rates EXHIBIT E Insurance EXHIBIT F Reimbursable Expenses EXHIBIT G Lien Waiver EXHIBIT H List of Engineers • -19- • EXHIBIT A PROGRESS SCHEDULE The progress schedule will be mutually developed with the City of St. Anthony at the appropriate time. The project may be held up for a few months after the completion of the schematic phase to accommodate a potential School District referendum. EXHIBIT B PROJECT The Project includes City Administrative Offices, Council Chamber and other associated areas; Police Department; Public use spaces including a Gymnasium; and Community Education spaces. The program may change as the project design evolves at the descretion of the City. • EXHIBMG SCHEDULE OF PAYMENTS FOR BASIC SERVICES Payments shall be made monthly as the work progresses within the following catagories to bring the total paid to: Schematic Design Phase: 20% of the total fee ($39,400 per letter of Nov 17, 1994) Design Development Phase: 25% of the total fee Construction Documents Phase: 30% of the total fee Bidding Phase: 05% of the total fee Construction Phase: 20% of the total fee The Design Development and Construction Document Phases may, at the option of the City, be combined in the interest of expediting the Project when the schedule can be determined accurately. EXHIBIT 12 SCHEDULE OF HOURLY RATES PRINCIPAL: 75.00 ARCHITECT: 55.00 - 65.00 DESIGNER: 36.00 - 48.00 DRAFTSPERSON: . 30.00 - 38.00 JR. DES/DRAFT: 22.00 - 30.00 CLERICAL: 25.00 • EXHIBIT E ARCHITECT'S INSURANCE 1. ARCHITECT'S INSURANCE The Architect shall at its own expense maintain in effect at all times during the performance of the Work under the Agreement at least the following coverage and limits of insurance: A) Worker's Compensation and Employer's Liability Insurance as required by the Worker's Compensation Laws of the state where the Project is located (maximum amount permitted by statute, unlimited is permitted) with Employer's Liability Coverage to limits of not less than $1,000,000 covering operations of the Architect in connection with the Project at or from the Project Site as hereinafter defined. B) Comprehensive General Liability-Automobile Insurance including coverage for Bodily Injury, Property Damage, Personal Injury, having a minimum combined single limit of $3,000,000, and including contractual liability coverage. Architect shall also provide and maintain insurance for automobile liability, covering all automobiles and trucks, whether owned or hired by Architect, used by Architect, either on or away from the Land, as hereinafter defined, having a minimum combined single limit of $1,000,000. C) Professional Liability Insurance - Architect's errors and omissions liability coverage have, per claim/aggregate, a limit of $2,000,000. 2. ARCHITECT'S OBLIGATIONS Architect shall not violate or knowingly permit any violation of any conditions or terms of the policies of insurance required to be carried under the terms hereof and shall endeavor to satisfy the requirements of the insurance companies issuing them. In the event Architect neglects, refuses or fails to provide or maintain any of the insurance required to be carried under the Agreement, or if such insurance is canceled for any reason, the City or the City's lender(s) shall have the right, but not the duty, to procure or maintain the same. In the event the City or the City's lender(s) do procure or maintain such insurance, the City or the City's lender(s) shall have, in addition to any • E-1 and all other available remedies, the right to recover from the Architect • (including the right of set-off against sums otherwise due the Architect) all of the costs associated with procuring or maintaining such insurance. 3. PROFESSIONAL LIABILITY INSURANCE A) Professional Liability Coverage of $1,000,000 shall be maintained for one year from the date of Substantial Completion. If Architect discontinues its business, and if directed by the City in writing, Architect shall purchase such insurance in such amount for an extended discovery period beyond the one year after the date of Substantial Completion, with the premium cost to be a reimbursable expense paid by the City. The limit of liability for such policy may not be reduced below $1,000,000 without the City giving its prior, written consent. All policies of insurance that Architect is required under the terms of this Exhibit A to secure and maintain shall bear the endorsement 'Not to be canceled until 30 days after the City has received a written notice from insurer as evidenced by a return receipt of registered or certified mail." On City's request, Architect shall obtain, at City's expense, additional Project specific coverage. B) The City shall not be responsible for obtaining or paying premiums or other expenses in connection with insurance required to be carried under the Agreement or normally carried by the Architect or the Architect's consultants, and the obligation to obtain such insurance and to pay such premiums and other expenses shall be solely that of the Architect. C) The Architect shall bear all costs of any and all deductible amounts under any insurance policies required to be carried under the Agreement and shall remain solely and fully liable for the full amount of any claim or item not compensated by insurance (including settlement made with the prior written approval of the City.) 4. COVERAGE The coverages referred to above are set forth in full in the respective policy forms, and the foregoing descriptions of such policies are not intended to be complete. 5. GENERALLY A) The Architect hereby represents and warrants to the City that, as of the date of the execution of the Agreement, the Architect is not aware of • E-2 any claims or potential claims which have been made, filed or threatened against any of the insurance or for damages covered by any of the insurance required to be carried under the Agreement. B) It is understood that the provisions in the Agreement requiring the Architect to carry insurance shall not be construed as in any manner waiving or restricting the liability of the Architect as to any obligations imposed under the Agreement, including, but not limited to, obligations imposed under the provisions of Article 14 of the Agreement. • E-3 EXHIBIT F SCHEDULE OF RATES FOR REIMBURSABLE EXPENSES DESCRIPTION COST 24X36 BLUEPRINT 0.60 30X42 BLUEPRINT 0.90 24X36 MYLAR REPRODUCABLE FROM LASER COPY 6.00 30X42 MYLAR REPRODUCABLE FROM LASER COPY 9.00 24X36 DRAFTING MYLAR 4.19 30X42 DRAFTING MYLAR 6.10 24X36 VELLUM REPRODUCABLE FROM LASER COPY 5.40 30X42 VELLUM REPRODUCABLE FROM LASER COPY 7.90 24X36 FOAMCORE 4.99 30X40 FOAMCORE 4.99 XEROX COPY 0.05 FAX NO CHARGE SPECIFICATION DISKETTES 1.50 POSTAGE NO CHARGE DELIVERY CHARGE 4.50 • EXHIBIT G LIEN WAIVER The undersigned has commenced or is about to commence to render services, to perform work or to furnish materials in connection with the erection, construction or repair of improvements or appurtenances on certain real property owned by the City of St. Anthony (the "City") and described in Exhibit "A" attached hereto. NOW, THEREFORE, the undersigned, in consideration of the sum of $ the receipt of which is hereby acknowledged, does hereby waive and release all rights acquired by the undersigned to file or record mechanic's liens against said real property for services rendered, work performed or materials furnished to said real property, arising on or prior to _' 199_(the "Settlement Date"). It is understood and agreed that the execution of this Lien Waiver relates to all services rendered, work performed and materials furnished through the Settlement Date by the undersigned, in any and all capacities. Should any lien be filed by or on behalf of the undersigned or its successors or assigns for services rendered, work performed or materials furnished through the Settlement Date, a copy of this Lien Waiver may be filed or registered in the appropriate real property records and shall operate as a release of the lien and rights of lien released or waived by this Lien Waiver, without any further action on the part of the undersigned. This Lien Waiver shall inure to the benefit of the City and its successors and assigns and shall be binding upon the undersigned and its successors and assigns. WILLIAMS-O'BRIEN ASSOCIATES INC. By Its STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN) The foregoing instrument was acknowledged before me this _day of , 1994, by , the of Williams-O'Brien Associates Inc., a Minnesota corporation, on behalf of the corporation. i Notary Public EXFHBIT H LIST OF ENGINEERS Structural Engineer: Bakke, Kopp, Ballou & McFarlin Mechanical Engineer: LWPB Electrical Engineer: Wunderlac-Malec •