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Res 020-2007 2/6/2007 RESOLUTION NO. b� RESOLUTION OF THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, APPROVING A PROFESSIONAL SERVICES AGREEMENT WITH SECORD AND LEBOW ARCHITECTS FOR ARCHITECTURAL SERVICES; FINDING AND DETERMINING THAT THE MEETING AT WHICH THIS RESOLUTION WAS PASSED WAS OPEN TO THE PUBLIC AS REQUIRED BY LAW. WHEREAS, City staff is pursuing a design-build approach to constructing the firing range and skate park; and WHEREAS, State law requires a local government who uses the design-build approach to utilize the services of an architect or engineer to review design submittals and observe construction; and WHEREAS, City staff is recommending Secord and Lebow Architects for these services. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: SECTION 1 . The Attached Professional Services Agreement with Secord and Lebow Architects is hereby approved. SECTION 2. It is hereby officially found and determined that the meeting at which this resolution was passed was open to the public as required by law. PASSED AND APPROVED this the day of 6 day of February, 2007. , ,--��' � MAYOR �_ ATTEST: C� Clerk STATE OF TEXAS )( COUNTY OF WICHITA )( This contract, made and entered into as of the day of , 20_, by and between the City of Wichita Falls, Wichita County, Texas, a Municipal Corporation in the State of Texas, (hereinafter called "OWNER" or "CITY") and the firm of (hereinafter called "ARCHITECT" or "CONSULTANT"), ARCHITECTs duly licensed and practicing under the laws of the State of Texas; WITNESSETH: WHEREAS, the City of Wichita Falls proposes to accomplish certain improvements in a project known as ; and, WHEREAS, the firm of is acceptable to the Owner and is willing to enter into a contract to perForm ARCHITECT service required by the Owner. NOW, THEREFORE, it is agreed as follows: Section 1 I . A. The general scope of the project is to be the City's agent in the review of the Design Build Contractor design services and observe construction at periodic intervals. This shall include the review of proposals, attend meetings, review design submittals, review proposed contracts and construction administrative services. The pre-construction services will be on an hourly basis. The general administration of the construction will be on a percentage of the construction cost. The projects this service will be performed on are : a. The Skate Board Park. b. The Firing Range. B. The OWNER hereby retains the ARCHITECT for all ARCHITECT services required in connection with the said proposed project. The services performed by the ARCHITECT in connection with proposed improvements shall be divided into two phases, as follows: Phase I: Pre Construction Services: 1. Review proposals, attend meetings, review design submittals, and review proposed contracts for construction. The OWNER will designate which meeting's the ARCHITECT will attend. Phase 2— General Administration of construction will be of the final design by the Design Build Contractor C. Phase I- Consultant servicves: 1. Attend Meetings (Pre proposal, pre design meetings, design review meetings) at the Owner's discretion. 2. Review designs and make technical and design comments in report format for the Design Build Contractor to respond to in writing. 3. Review Proposals presented to the City in an advisory capacity. 4. Review the proposed contract with the Design Build Contractor. D. Phase 2- General Administration of Construction shall include: 1. Attend a Pre-Construction Conference with the representatives of the interested CITY Departments and Design Build Contractor. 2. CONSULTANT shall be responsible for observing that the design build contractors work is in accordance with the plans and specifications and the contractor's contract. ARCHITECT and appropriate CONSULTANTs shall make such on-site observations periodically, to check the quality and quantity of work being provided by the contractor and to the best of their ability confirm contract compliance. ARCHITECT/CONSULTANT is expected to bring any deficiencies to the OWNERS attention as they are observed. 3. Consulting and advising with the OWNER and preparing routine change orders as required. 4. Consultant shall conduct a comprehensive site review prior to submittal of the final pay estimate to create a"punch list" of items required for completion prior to notice of substantial completion. It shall be the responsibility of the consultant, upon notice from the contractor, to verify completion of the punch listed items. 5. Review the Design Build Contractors (Contractors) final estimates for payments to contractors and furnishing any necessary certifications as to payments to sub-contractors and suppliers. 6. Performing, in company with the representative of the OWNER, a final inspection of the Project. 7. Review Design Build Contractor's construction drawings to reflect any revisions included in construction records. 8. Obtain from the design build contractor and deliver to the OWNER, all manufacturers' warranties or bonds on materials and equipment incorporated in the Project for which such warranties or bonds were requested by the specifications. 9. Obtain from the design build contractor and deliver to the OWNER, operations and maintenance (O & M) documents on equipment incorporated in the Project for which such documents were requested by the specifications. O& M documents are to be bound into volumes not more than two (2) inches in thickness and are to be fully indexed and tabbed. All sheets will be folded, as required, to not larger than 8-1/2 x 11 inch size. O& M documents are to be original copy in the number of copies specified. 11. Review design build contractors changes requested by the OWNER, of any changes, alterations or modifications to the Project which appear to be advisable and feasible and in the best interest of the OWNER. 12. Review the design build contractor's submittals of construction materials. II. Special Provisions A. It shall be agreed that the authorization to perform Phases 2 by the ARCHITECT is contingent on the specific decision by the OWNER to proceed with Phases 2 and 3. The ARCHITECT shall only perform Phase 2 after notification by the OWNER in writing. B. If the OWNER does not issue a notification to proceed to the ARCHITECT for Phase 2 within twenty-four months of the date of this contract, then this contract is subject to cancellation by either party. C. As necessary and as required by law, CONSULTANT shall coordinate with and/or seek approval of federal, state and local authorities for concept and design of this project. Such coordination or approval shall be accomplished prior to the bidding process. D. For special services as may be required and/or authorized by the OWNER, the ARCHITECT shall be compensated on the basis of fees as shown in Appendix A herein attached. Special services are defined as court litigation, field surveys for land acquisitions and easements, associated travel costs, and other service, as shown in Appendix A. E. The OWNER will give prompt written notice to the ARCHITECT whenever the OWNER observes or otherwise becomes aware of any defects in the Architectural services, in the work of the contractor, or any development that affects the scope or timing of Architectural services. III. Fee Schedule For and in consideration of the services to be rendered by the ARCHITECT in this Agreement, the OWNER shall pay and the ARCHITECT shall receive the fee as set forth in attachment hereto which is made a part hereof and identified as Exhibit I. IV. Owner's Riqht to Withhold Pavment The Owner has the right withhold payment to Architect for services rendered. Owner may only withhold payment after the following two steps: • Owner must notify Architect in writing of any perceived failures or defects in work product or inability to meet critical deadlines. Written notice shall be specific as to either the term or condition of this agreement that is not satisfied and/or agreed-upon deadline for the completion of a particular task that has not been met. In that letter, the Owner shall indicate his/her intention to withhold payment. • Upon receipt of owner's correspondence, Architect has 10 business days to respond in writing to the specific claims. If the Architect does not satisfy the Owner with respect to deficiencies in work product and/or causes for delays in the schedule, the Owner has the right to continue to withhold payment until the Owner is satisfied with the Architect's response and planned activity to correct performance. V. Termination A. Right of Either Party to Terminate This Agreement may be terminated by either party for substantial failure by the other party to perform (through no fault of the terminating party) in accordance with the terms of this Agreement. This agreement may also be terminated if the CITY elects, for whatever reason, not to continue the proposed project. The terminating party must issue a signed, written notice of termination (citing this paragraph) to the other party which shall take effect on the tenth day following receipt of said notice. B. Procedures ARCHITECT to Follow upon Receipt of Notice of Termination if Issued by the OWNER Upon receipt of a notice of termination and prior to the effective date of the termination, the ARCHITECT shall, unless the notice otherwise directs, immediately begin to phase-out and discontinue all service in connection with the performance of this Agreement and shall proceed to promptly cancel all existing orders and contracts insofar as such orders and contracts are chargeable to this Agreement. Within thirty (30) days after receipt of the notice of termination, the ARCHITECT shall submit a statement, showing in detail the services performed under this Agreement prior to the effective date of termination. Copies of all completed or partially completed specifications and reproducibles of all completed or partially completed design and plans prepared under this Agreement prior to the effective date of termination shall be delivered to the OWNER as a pre-condition to final payment. These documents shall be subject to the restrictions and conditions set forth in IV above. Upon the above conditions being met, the OWNER shall promptly pay the CONSULTANT that proportion of the prescribed fee which the services actually performed under this Agreement bear to the total services called for under this Agreement, less previous payment of the fee. Failure by the ARCHITECT to comply with the submittal of the statement and documents as required above shall constitute a waiver by the ARCHITECT of any and all rights or claims to collect monies that ARCHITECT may rightfully be entitled to for services performed under this Agreement. VI. ARCHITECT's Warrantv The ARCHITECT warrants that he has not employed or retained any company or person other than a bona fide employee working solely for the ARCHITECT, to solicit or secure this contract, and that he has not for the purpose of soliciting or securing this contract paid or agreed to pay any company or person, other than a bona fide employee working solely for the ARCHITECT, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this contract. For breach of this warranty, the OWNER shall have the right to terminate this contract under the provisions of V above. VII. Equal Emplovment Opportunity/Minoritv Business Enterprise The ARCHITECT agrees not to engage in employment practices which have the effect of discriminating against any employee or applicant for employment; and, will take affirmative steps to ensure that applicants are employed and employees are treated during employment without regard to their race, color, religion, national origin, sex, age, handicap, or political belief or affiliation. VIII. Assiqnment or Transfer of Interest The ARCHITECT shall not assign or transfer his interest in the contract without the written consent of the OWNER. IX. Indemnification The Consultant agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Client, its officers, directors and employees (collectively, OWNER) against all damages, liabilities or costs, including reasonable attorneys' fees and defense costs, to the extent caused by the Consultant's negligent performance of professional services under this Agreement and that of its subconsultants or anyone for whom the Consultant is legally liable. The OWNER agrees, to the fullest extent permitted by law, to indemnify and hold harmless the Consultant, its officers, directors, employees and subconsultants (collectively, Consultant) against all damages, liabilities or costs, including reasonable attorneys' fees and defense costs, to the extent caused by the OWNER's negligent acts in connection with the Project and the acts of its contractors, subcontractors or consultants or anyone for whom the OWNER is legally liable. Neither the OWNER nor the Consultant shall be obligated to indemnify the other party in any manner whatsoever for the other party's own negligence. X. Severability If for any reason, any one or more paragraphs of this contract are held invalid, such judgment shall not affect, impair or invalidate the remaining paragraphs of the contract but shall be confined in its operations to the specific section, sentences, clauses or parts of this contract held invalid and invalidity of any section, sentence, clause or parts of this contract in any one or more instance shall not affect or prejudice in any way the validity of this contract in any other instance. XI. Entire Agreement This Agreement represents the entire and integrated Agreement between the OWNER and ARCHITECT and supersedes all prior negotiations, representations, or agreements either oral or written. This Agreement may be amended only by written instrument signed by both the OWNER and ARCHITECT. SECTION 2 IN WITNESS WHEREOF, the City of Wichita Falls has lawfully caused these presents to be executed by the hand of the City Manager of said CITY, and the corporate seal of said CITY to be hereunto affixed and this instrument to be attested by the City Clerk, and the said CONSULTANT, acting by the hand of , thereunto authorized , does now sign, execute and deliver this document. DONE at Wichita Falls, Texas, on this day of , A.D., 20 BY: Official Title Corporation Secretary CITY OF WICHITA FALLS BY: City Manager ATTEST BY: City Clerk EXHIBIT 1 COMPENSATION FOR PROFESSIONAL SERVICES PERCENT OF CONSTRUCTION COST METHOD Section 1- Basis for Compensation 1.1 For the purpose of establishing fees for separate phases, the following percentage allocations apply: Phase 1- Pre Construction Services Hourly (See Attached Rates) Phase 2- General Administration of Construction 1.75% of the Construction Cost If the total project is constructed under more than one contract with a contractor, each contract being bid and administered separately under the terms of this agreement with the ARCHITECT, then the above schedule shall be applied to the awarded value of each separate contract and the ARCHITECT shall be paid accordingly. The total fee, however, shall not exceed the maximum fee to be paid under this contract. 1.2 In the event the Project is terminated without awarding a construction contract, the fee due for the Design Phase shall be as shown in paragraph 1.1 above. Section 2- Method of Pavments 2.1 Payment shall be made to the CONSULTANT based upon the several Phases as described heretofore and in accordance with the following: 2.1.1. Pre-Construction Services - Hourly rates (See Exhibit A) based on monthly invoices. 2.1.3 General Administration of Construction of Construction Phase - Payment will be made in monthly installments for this Phase in proportion to the construction work completed by the construction contractor. However, the final payment due under this Phase will be withheld until such time as the "Record Drawings" reproducible drawings heretofore mentioned have been furnished. 2.2 The CONSULTANT shall be compensated on the basis specified for extra services not included in the contract as set forth in Appendix "A", for only those Field Alterations that have been approved by the CITY for compensation, however, the CONSULTANT shall not be compensated for Field Alterations made necessary by the CONSULTANT's errors or omissions. 2.3 The final payment to be made by the CITY to the CONSULTANT will be payable upon submission of the "Record Drawings" Plans. APPENDIX "A" COMPENSATION FOR ADDITIONAL PROFESSIONAL SERVICES The fees as described in Exhibit 1 of this contract for the Preliminary, Design and Construction Phases of the Project shall provide compensation to the CONSULTANT for all services called for under this agreement to be performed by him or under his direction except the services as set forth below. These additional services and the compensation to be paid by the CITY to the CONSULTANT for their performance when authorized in writing by the Director as set forth as follows: A. The basis of compensation for the following additional services shall be according to the attached rate sheet. Non-labor expense and subcontract expense shall be payable at invoice cost plus a 10% service charge. 1. Assistance to the CITY as an expert witness in any litigation with third parties, arising from the development or construction of the Project including the preparation of Architectural data and reports. 2. Preparation of applications and supporting documents for governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effect on the design requirements of the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact on the Project. 3. Revising previously accepted studies, reports, design documents or Contract Documents when such revisions are due to causes beyond CONSULTANT's control. 4. Preparing documents for alternate bids requested by the CITY. 5. Investigations involving detailed consideration of operations, maintenance and overhead expenses. 6. Providing Value Architectural services during the course of design. 7. Preparation of feasibility studies not required in the base contract. 8. Cash flow and economic evaluations, rate schedules and appraisals. 9. Detailed quantity surveys of material, equipment and labor. 10 Audits or inventories required in connection with construction performed by the CITY. 11. Services after the award of each contract in evaluating substitutions not specified as an "or equal" proposed by the contractor(s) as authorized by the CITY. 12. Making revisions to drawings and specifications occasioned by substitutions. 13. Services during out-of-town travel required of CONSULTANT by the OWNER. 14. Additional services during construction made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of defective or neglected work of contractor(s), (3) acceleration of the progress schedule required by the CITY involving services beyond normal working hours, and (4) default by contractor(s). 15. Preparation of operating and maintenance manuals. 16. Additional or extensive assistance after initial startup in the utilization of any equipment or system (such as post initial startup testing, adjusting and balancing). 17. Training personnel for operation and maintenance. 18. Services after the completion of the Construction Phase, such as inspections during any guarantee period and reporting observed discrepancies under guarantee called for in any contract for the project. 19. Actual perFormance of test borings and other soil or foundation investigations and related analysis. 20. Detailed mill, shop and/or laboratory inspection of materials or equipment. 21. Additional copies of reports, drawings and specifications over the number specified in the base contract. 22. Providing renderings or models for CITY use. 23. Project aerial mapping. 24. Right-of-way surveys and related office calculations. . a B. The basis of compensation through the Pre-Construction Phase shall be hourly at the rates listed below. C For project observation services, the CONSULTANT shall be paid 1.75 percent of the total construction cost of the project. D. For Design/Bid/Build services that may occur from the addition of any ancillary structures or improvements in support of the projects listed in Section 1.A, the basis for compensation shall be at a rate of 8.5 percent of the total construction cost. E. For purposes of this appendix, the Principals of the consulting firm and their total hourly charge will be as follows: NAME HOURLY CHARGE 1. Partner: $115.00 Troy Secord Jackie Lebow, Jr. 2. Associate: $ 80.00 Danny Richardson, Jr. 3. Architectural Intern 1: $ 75.00 Craig Hopkins Darrell Hobbs 4. Architectural Intern 2: $ 50.00 Corey Adams Nichole Koehler 5. Architectural Intern 3: $ 40.00 Chris Chavez 6. Draftsperson 1: $ 40.00 Joe Moreno 7. Draftsperson 2: $ 35.00 Tiffany Ross 8. Clerical: $ 40.00 Jeani Secord Sandy Fought F. During the Pre-Construction Phase, if the CONSULTANT requires the employ of sub-consultants, the basis of compensation will be the sub-consultants hourly charge plus a fee of 15 percent.