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Res 1921 2/15/1977RESOLUTION NO. /lov/ A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH MICHAEL 0. MALONEY - ARCHITECT FOR ARCHITECTURAL SERVICES RELATED TO THE DEVELOPMENT OF DEPOT SQUARE WHEREAS, the concept of an historical district has received wide community support; and, WHEREAS, an historical district is included in the MIDTOWN 2000 Plan; and, WHEREAS, the concept of Depot Square as the focal point of an historical district was approved by the Board of Aldermen during Community Development Block Grant Public Hearings; and, WHEREAS, the Board of Aldermen approved the expenditure of funds for this project; and, WHEREAS, Michael 0. Maloney - Architect has been involved with restoration of older structures in the midtown area. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS THAT: Gerald G. Fox, City Manager, is authorized and directed to enter into a contract with Michael 0. Maloney - Architect, for architectural services related to the development of Depot Square, based on the contract and scope of services which are attached hereto. dayANDAPPROVEDTHISTHE &&/day of - t 1977. c7 717 MAY 4 R ATTEST: CITY CLERK T.4. t STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS: COUNTY OF WICHITA This agreement made as of the day of in the year Nineteen Hundred and Seventy-seven by and between the City of Wichita Falls, hereinafter called the Owner, and Michael 0. Maloney-Architect, hereinafter called the Architect, witnesseth that whereas the Owner intends to include the ren- ovation of existing structures and construction of new facilities to be included in the Depot Square Historical District; NOW, THEREFORE, THE OWNER AND THE ARCHITECT FOR THE CONSIDERATION HEREIN- AFTER SET FORTH AGREE AS FOLLOWS: A. WHEREAS the Owner desires to engage the Architect to render certain technical or professional services hereafter described in connection with an under- taking which is expected to be financed under a General Revenue Sharing Grant: B. The Owner agrees to pay the Architect as compensation for his services: 1) For his basic service ten and one-half percent (101/2%) of the project construction costs for renovation and seven percent (77) of the project construction costs for new construction, hereinafter referred to as the Basic Rate, the work to be let under more than one contract, total cost of construction and renovation not to exceed the higher of $100,000 or $186,000 minus property acquisition and reloca- tion costs. 2) For extra service defined in Article II hereinafter, the Owner agrees to pay the Architect 2.25 times the Direct Personnel Expense as defined in Paragraph 16 hereinafter. 3) Reimbursable expense as defined hereafter in Paragraph 16 to the amount expended. C. The parties hereto further agree to the following conditions: 1) Employment of Contractor. The Owner hereby agrees to engage the Architect and the Architect hereby agrees to perform in cooperation with the Owner the services hereinafter set forth in Attachment 1. 2) Personnel. a) The Architect represents that he has, or will secure at his own expense, all personnel required in performing the services under this contract. Such personnel shall not be employees of or have any contractual relationship with the Owner. b) All of the services required hereunder will be performed by the Architect or under his supervision, and all personnel engaged in the work shall be fully qualified and shall be authorized under State and local law to perform such services. c) The Architect will submit to the Owner a list of all employees, their positions and rate of pay. d) None of the work or services covered by this Contract shall be subcontracted without the prior written approval of the Owner. 3. Time of Performance. The services of the Architect are to commence as soon as practicable after the execution of this Contract and shall be under- taken and completed in such sequence as to assure their expeditious completion in the light of the purposes of this Contract, but in any event all of the ser- vices required in phases 1 through 5 shall be completed by June 30, 1977. 4. Equal Employment Opportunity. a) The Architect will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The Architect shall take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such actions shall include, but not be limited to the following: employment, upgrading, demotions, or transfers, recruitment or recruitment advertising; layoffs or terminations; rates of pay or other forms of compensation; selection for training including apprenticeship; and participation in recreational and educational activities. The Architect agrees to post in conspicuous places available to employees and applicants for employment notices to be provided setting forth the provisions of this non-discrimination clause. The Architect will in all solicitations on advertisements for employees placed by or on behalf of the Architect, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. The Architect will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this contract so that such provisions will be binding upon such sub- contractor provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. b) The Architect shall keep such records and submit such reports concerning the racial and ethnic origin of applicants and employees as the owner may require. c) The Architect agrees to comply with such rules, regulations, or guidelines as HUD may issue to implement this project. 5. Interest of Members of Owner and Others. No officer, member or employee of the Owner and no members of its governing body, and no other pub- lic official of the governing body of the locality or localities in which the Project is situated or being carried out who exercises any functions or res- ponsibilities in the review or approval of the undertaking or carrying out of this Project, shall participate in any decisionion relatin g to this Contract which affects his personal interest or the interest of any corporation, part- nership, or association in which he is, directly or indirectly interested or has any personal or pecuniary interest, in this Contract or the proceeds thereof. 6. Assignability. The Architect shall not assign any interest in this Contract, and shall not transfer any interest in the same (whether by assignment or notation) without the prior written consent of the Owner thereto; Provided, however, that claims for money due or to become due to the Architect from the Owner under this Contract may be assigned to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer shall be furnished promptly to the Owner. 7. Interest of Architect. The Architect covenants that he presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed of this Contract. The Architect further covenants that in the per- formance of this Contract no person having any such interest shall be employed. 8. Findings Confidential. Any reports, information, data, etc. , given to or prepared or assembled by the Architect under this Contract which the Owner requests to be kept as confidential shall not be made available to any individual or organization by the Architect without the prior written approval of the Owner. 9. Officials Not to Benefit. No members of or delegate to the Congress of the United States of America, and no resident commissioner, shall be admit- ted to any share or part hereof or to any benefit to arise herefrom. 10. Identification of Documents. All reports, maps, and other documents completed as a part of this Contract, other than documents exclusively for in- ternal use within the Owner, shall carry the following notation on the front cover or a title page, (or in the case of maps, in the same block containing the name of the Owner). The preparation of this report, map, document, etc. was financed by General Revenue Sharing funds from the Office of Revenue Sharing, together with the Date (month and Year) the document was prepared and the name of the munici- pality, metropolitan area, or other planning area concerned. 11. Publication. Reproduction and Use of Material. No material pro- duced in whole or in part under this Contract shall be subject to copyright in the United States or in any other country. The Owner and HUD shall have restric- ted authority to publish, disclose, distribute, and otherwise use, in whole or in part, any reports, data, or other materials prepared under this Contract. 12. Audits and Inspections. At any time during normal business hours and as often as the Owner, HUD and/or the Comptroller General of the United States may deem necessary, there shall be made available to the Owner, and/or representatives of the Comptroller General for examination all of the architect's records with respect to all matters covered by this Contract and will permit the Owner, HUD, and/or representatives of the Comptroller General to audit, examine and make excerpts or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Contract. 13. Amendments. Changes and amendments may be made to this contract by mutual written consent. 14. The Owner's Responsibilities a. The Owner shall provide full information as to his requirements for the Project. b. He shall designate, when necessary, representatives authorized to act in his behalf. He shall examine documents submitted by the Architect and render decisions pertaining thereto promptly, to avoid unreasonable delay in the pro- gress of the Architect's work. He shall observe the procedure of issuing orders to contractors only through the Architect. c. He shall furnish or direct the Architect to obtain at the Owner's ex- pense, a certified survey of the site, giving as required, grades and lines of streets, alley, pavements, and adjoining property, rights of ways, res- trictions, easements, encroachments, deed restriction, boundaries, and con- tours of the building site; locations, dimensions, and utility lines both public and private; and test borings and pits necessary for determining subsoil conditions. d. He shall pay for structural, chemical, mechanical, soil mechanics or other tests and reports. e. He shall arrange and pay for such legal and auditing services as may be required for the Project. f. He shall pay for such special preservation services as may be required for the project. g. If the owner observes or otherwise becomes aware of any defect in the Project, he shall give prompt notice thereof to the Architect. 15. Project Construction Cost a. Project construction cost herein referred to means the total cost of all work designed or specified by the Architect, but does not include any payment made to the Architect or consultants. b. Project construction cost shall be based upon one of the following sources with precedence in the order listed: i) Lowest acceptable bona fide Contractor's proposal received for any or all portions of the Project. ii) Estimate of project construction cost as defined it paragraph d) below. iii) The Architect's latest estimate of probable project construction cost shall include such labor and material at current market cost. c. When labor or material is furnished by the Owner, the project construction cost shall include such labor and material at current market cost. d. If a fixed limit of project construction cost is stated herein, or if otherwise authorized by the Owner, estimates of the project construction cost prepared in semi-detailed or detailed form by an experienced estimator will be. secured by the Architect during the Design Development or Construction Docu- ments Phase. e. If the estimated project construction cost or the lowest bona fide proposal is in excess of any limit stated herein, the Owner shall give written approval of an increase in the limit, or he shall cooperate in revising the project scope of quality, or both, to reduce the cost as required. 16. The Architect's Expense a. Direct Personnel Expense includes that of principals and employees engaged on the Project including architects, engineers, designer, job cap- tains, draftsmen, specification writers, typists and Project Representatives, in consultation, research, designing, producing drawings, specification and other documents pertaining to the Project, and services during construction at the Project site. Employees' time shall be at their regular rates of pay. b. Reimbursable Expense includes actual expenditures made by the Archi- tect in the interest of the Project for the following incidental expenses. i) If authorized in advance by the Owner, the expense of Project Representative, overtime work requiring higher than regular rates, semi-detailed and detailed estimates of project construction cost, perspectives or models for the owner's use. ii) If their employment is authorized in Advance by the Owner, fees of special consultants, for other than the normal structural, mech- anical and electrical engineering services. 17. Payment to the Architect a. Payment on accounts of the Architect's basic services shall be as follows: i) A primary payment of 5 per cent of the compensation for basic services, payable upon the execution of the Agreement, is the min- imum payment under the Agreement. ii) Subsequent payments shall be made monthly in proportion to services performed to increase the compensation for basic services to the following percentages at the completion of each phase of the work: 1) Schematic Design Phase 157 2) Design Development Phase 35% 3) Construction Documents Phase 75% 4) Receipt of Bids 80% 5) Construction Phase 100% b. Payments for extra services of the Architect as defined in Article II and for Reimbursable Expense as defined in Paragraph 16 shall be made monthly upon presentation of Architect's detailed invoice. c. No deduction shall be made from the Architect's compensation on account of penalty, liquidated damages, or other sums withheld from payments to contractors. d. If any work designed or specified by the Architect during any phase of service is abandoned or suspended in whole or in part, the Architect is to be paid for the service performed on account of it prior to receipt of written notice from the Owner of such abandonment or suspension together with reim- bursements then due any terminal expense resulting from abandonment or sus- pension for more than three months. 18. Accounting Records of the Architect Records of the Architect's Direct Personnel, Consultant, and Reim- bursable Expense pertaining to this Project and records of accounts between the Owner and Contractor shall be kept on a generally recognized accounting basis and shall be available to the Owner or his authorized representative at mutually convenient times. 19. Termination of Agreement This Agreement may be terminated by either party upon seven days written notice should the other party fail substantially to perform in accord- ance with its terms through no fault of the other. In the event of termination, due to the fault of persons other than the Architect, the Architect shall be paid for services performed to termination date, including reimbursements then due, plus terminal expense. 20. Ownership of Documents Drawings and specifications as instruments of service are the prop- erty of the Architect whether the project for which they are made is xe ecuted or not. They are not to be used on other projects except by agreement in writing. 21. Successors and Assigns The Owner and the Architect each binds himself, his partners, suc- cessors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party in respect of all covenants of this Agreement. Neither the Owner nor the Architect shall assign, sublet or transfer his interest in this Agree- ment without the written consent of the others. 22. Arbitration Arbitration of all questions in dispute under this Agreement shall be at the choice of either party and shall be in accordance with the provisions, then obtaining, of the Standard Form of Arbitration Procedure of the American I ` Institute of Architects. This Agreement shall be specifically enforceable under the prevailing arbitration law and judgement upon the award rendered and may be entered in the court of the forum, state or federal, having jurisdiction. The decisions of the arbitrators shall be a condition pre- cedent to the right of any legal action. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be signed as of the day and year first above written ATTEST: CITY OF WICHITA FALLS, TEXAS BY: City Clerk Gerald G. Fox, City Manager ATTEST:ARCHITECT BY: Approved as to form: City Attorney Funds available and encumbered: Director of Finance ATTACHMENT I SCOPE OF SERVICES DEPOT SQUARE I. Basic Service of the Architect 1. The Architect shall meet with potential participating agencies and private property owners and conduct required research and analysis. This will involve conference with various agencies and with the City Staff. In support of this basic service, the Architect, in cooperation with the City Staff, will hold a series of formal scheduled workshops to obtain public involvement. The number of required workshops shall be between four (4) and six (6) . 2. The Architect shall review the Depot Square Preservation Plan for Midtown Wichita Falls to insure that all required work is compatible with this approved plan. 3. Schematic Design Phase a) The Architect shall consult with the city to ascertain the require- ments of the project and shall confirm such requirements to the city. b) The Architect shall prepare, review, and amend schematic design studies leading to a recommended solution together with a general description of the project for approval by the City. c) The Architect shall prepare the plans in accordance with applicable Federal standards. These shall include but not be limited to the Architectural Barriers Act, the Flood Disaster Protection Act, and the National Historic Preservation Act. d) The Architect shall submit to the City a statement of the probable project construction cost based on current area, volume or other unit cost. e) The Architect will not clear plans and specifications until after the project has been environmentally cleared. 4. Design Development Phase a) The Architect shall prepare from the approved schematic design studies, the design development documents consisting of plans, elevations and other drawings, and outline specifications, and fix and illustrate the size and character of the entire Project in its essentials as to kind of material, type of structure, mechanical and electrical systems and such other work as may be required. b) The Architect shall submit to the City a further statement of the probable project construction cost and, if authorized by the City, obtain a semi-detailed estimate of such cost. 5. Construction Documents Phase a) The Architect shall prepare from the approved design development documents, working drawings and specifications setting forth in de- tail and prescribing the work to be done, and the materials, work- manship, finishes, and equipment required for the architectural, structural, mechanical, electrical, service-connected equipment, and site work, and the necessary bidding information, General Con- ditions of the Contract, and Supplementary General Conditions of the Contract, and shall assist in the drafting of proposal and contract forms. b) The Architect shall keep the City informed of any adjustments to previous statements of the probable project construction cost indi- cated by changes in scope, requirements, or market conditions. c) The Architect shall be responsible for filing the required documents to secure approval of governmental authorities having jurisdiction over the design of the Project. d) The Architect shall comply with federal standards of the Department of Housing and Urban Development. 6. Construction Phase - General Administration of Construction Contracts a) The Architect shall assist the City in obtaining proposals from con- tractors. To the extent provided by the Contract between the City and the Contractor, the Architect shall make decisions on all claims of the City and Contractor and on all other matters relat- ing to the execution and progress of the work or the interpreta- tion of the Contract Documents. b) The Architect shall check 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. c) The Architect will make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the work is proceeding in accordance with the General Documents. He will not be required to make exhaustive or continuous onsite inspections to check the quality or quantity of the work and he will work in accordance with the Contract Docu- ments. During such visits and on the basis of his observations while at the site, he will keep the City informed of the progress of the work, will endeavor to guard the City against deficiencies in the work of Contractors, and he may condemn work as failing to conform to the Contract Documents . Based on such observations and the Contractors' Applications for Payment, he will determine the amount owing to the Contractor and will issue Certificates for Payment in such amounts. These Certificates will constitute a re- presentation to the City, based on such observations and the data comprising the Application for Payment that the work has progressed to the point indicated . By issuing a Certificate for Payment, the Architect will also represent to the City that, to the best of his knowledge, information and belief based on what his observations have revealed, the quality of the work is in accordance with the Contract Documents. He will conduct inspections to determine the dates of substantial and final completion and issue a final Cer- tificate for Payment. d) If more extensive representation at the site is required, the con- ditions under which such shall be furnished and Project Representa- tive selected, employed and directed, shall be agreed to by the' City and the Architect. e) Upon Completion of construction, the Architect shall furnish a set of "as Built" drawings to the Owner, along with the original copies of all warrantees and guarantees. II. Extra Service of the Architect The following services, if performed due to unusual circumstances, cause the Architect extra expense, shall be paid for by the Owner as a multiple of Direct Personnel expense. 1. Holding more than six (6) workshops as defined in Part I, paragraph 1. 2. Revising previously approved drawings or specifications to accomplish changes ordered by the Owner. 3. Consultation concerning replacement of any work damaged by fire or other cause during construction and furnishing professional services of the types set forth in paragraph C.1. , as may be required in connection with the replacement of such work. 4. Preparing Special Concept and Schematic Plans, as required by the Owner, relating to the development of Depot Square including any necessary research regarding historical structures.