22-Sample Contract Form AVI Architectual.pdf

THIS IS A SAMPLE CONTRACT FORM ONLY. THE ACTUAL CONTRACT MAY OR MAY NOT CONTAIN THE

PROVISIONS HEREIN, DEPENDING ON THE SCOPE OF SERVICES.

Company Name – Project Name Architect's Contract – Department of Aviation Rev. 2-1-17

Resolution No. __-________

______________, 20__

ARCHITECT'S CONTRACT

FOR

STATE OF TEXAS §

§ KNOW ALL MEN BY THESE PRESENTS:

COUNTY OF DALLAS §

THIS CONTRACT is made and entered into as of the day of , 20__, by and between the CITY OF DALLAS, a municipal corporation of Dallas County, Texas

(hereinafter called "City", which term shall be construed to include any officer, representative, or

Board of the City having authority to represent or act for it, in relation to any part of the subject of this Contract), and ___________________, with offices located at

, Dallas, Texas ___ (hereinafter called "Architect").

W I T N E S S E T H:

WHEREAS, City intends to construct

________________________________________, hereinafter called the "Project", at a total budgeted construction cost not to exceed $______________for the completion of the Project, and total compensation for Architect's services not to exceed $_______________, which includes an allowance for Reimbursable Expenses not to exceed $______________, as further described in this Contract; and

WHEREAS, City desires to contract with Architect for complete architectural and engineering services in connection with design and construction of the Project, and for the administration of the Construction Contract during construction of the Project, all as stipulated in this Contract and within the budgeted limits set by City; and

WHEREAS, Architect has agreed to provide such professional services for the compensation provided in this Contract.

NOW, THEREFORE, City and Architect, in consideration of the mutual promises, terms, covenants and conditions contained in this Contract, agree as follows:

SCOPE OF SERVICES; COMPENSATION; CONTRACT ADMINISTRATION

A. Architect, as an independent Architect and professional consultant in its relationship with City, agrees to perform all professional services for the Project as set forth in this Contract and in Architect's Proposal Letters to City, dated ____________, 20__, attached to and made a part of this Contract as Exhibit A; provided, however, that in the event of any conflict between the terms of the Proposal Letter and this Contract, the terms of this Contract shall control.

B. City shall compensate Architect in accordance with the terms and conditions of this Contract as follows:

1. For Architect's Basic Services, including the services of any professional consultants engaged for complete architectural services and complete structural, mechanical, electrical and civil engineering services, a maximum Basic Fee not to exceed $_______________.

2. For approved Reimbursable Expenses, as defined in Article 4 hereof, an allowance not to exceed $_____________. Eligible Reimbursable Expenses, other than Special Consultants, shall be billed to the City at cost. Eligible Reimbursable

Expenses for Special Consultants shall be billed to the City at 1.10 times the amount billed Architect for same.

3. For Architect's Additional Services, if any be authorized in advance by City as hereinafter provided, a supplemental fee to be computed as follows:

(a) Principals' time at a fixed rate of $ per hour. For purposes of this

Contract, the Principals are:

(b) Employees' time shall be paid at the following agreed rates:

Project Manager $ per hour

Project Architect $ per hour

CADD Technician $ per hour

Administrative Asst. $ per hour

(c) Additional Services of Basic Consultants (including structural, mechanical, electrical, and civil engineering) shall be computed at 1.10 times the amounts billed to Architect. Additional Services of Special

Consultants shall be computed at 1.10 times the amount billed Architect for such services.

4. Unless subsequently changed by Supplemental Agreement to this Contract, duly authorized by City Council Resolution (or by Administrative Action where delegated by City ordinance), Architect's total compensation under this Contract for Basic Services shall not exceed $______________, plus a not-to-exceed amount of $______________ for approved Reimbursable Expenses. These amounts, totaling $_______________, represent the absolute limit of City's liability to Architect under this Contract, unless the limit is changed by

Supplemental Agreement to this Contract.

5. The times and further conditions of payment shall be as described in Article 5 below.

C. This Contract shall be administered on behalf of City by its Director of the

Department of Aviation or Director’s designee (hereinafter called the “Director”), and by

Architect through its duly designated and authorized representatives. Architect shall fully comply with any and all instructions from the Director. Any dispute between Architect and City or need for interpretation regarding what performance is required of Architect under this Contract shall be submitted to the Director, and the Director’s decision in the matter shall be final and binding.

ARTICLE I

ARCHITECT'S SERVICES

1.1. Basic Services

A. Architect's Basic Services consist generally of the five phases described below, and include complete architectural services and complete structural, mechanical, electrical and civil engineering services, and such other services as may be necessary to assist the City in the design and construction of the Project, within the budgeted limits set by City has, and in compliance with the Project Facility Program and the Design Standards for City Buildings, which are hereby made a part of this Contract for all purposes. All services set out in Architect's

Proposal Letter are to be performed whether specifically set out in this Contract or not. Architect agrees that upon execution of this Contract, it will submit to City within ten (10) days a list of all additional consultants it intends to utilize, not previously identified in Architect's Proposal Letter, delineating their respective tasks. All of Architect's subconsultants shall be subject to the approval of City through its Director of the Department of Aviation, and City reserves the right to reject any subconsultant. Architect shall perform all work under this Contract in a manner satisfactory and acceptable to City, represented by its Director of the Department of Aviation or

Director’s designee, hereinafter referred to as "Director." Architect's Final Plans and

Specifications shall include plans and profiles necessary to tie all Project water, sewer and storm drainage lines into adjacent existing lines and facilities, as authorized and approved by Director.

A Performance Schedule shall be agreed to by Architect and Director, and Architect agrees to use its best efforts to complete all services under this Contract in accordance with the Performance

Schedule, which Schedule shall be automatically incorporated into this Contract by reference upon agreement of Architect and the Director without need of a Supplemental Agreement. All services shall be performed to the highest professional standard.

B. City has developed an Environmental Management System (EMS), based upon

International Standards Organization (ISO) Standard 14001. As part of the EMS, City has adopted an environmental policy. Architect acknowledges receipt of the environmental policy as a part of the Request for Proposal and shall adhere to the policy and provide information to City in the form and at the times requested by City in furtherance of the policy.

C. Architect and its Subconsultants are deemed to have made themselves familiar with and at all times shall comply with the U.S. Green Building Council Leadership in Energy and Environmental Design (LEED) standards, as well as any and all applicable federal, state or local laws, rules, regulations, ordinances, and rules of common law now in effect (including any amendments now in effect), relating to the environment, including but not limited to the

Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.A.

§§ 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.A. §§ 1801, et seq.; the

Resource Conservation and Recovery Act of 1976, 42 U.S.C.A. §§ 6901, et seq.; the Federal

Water Pollution Control Act, 33 U.S.C.A §§ 1201, et seq.; the Toxic Substances Control Act, 15

U.S.C.A. §§ 2601, et seq.; the Clean Air Act, 42 U.S.C.A. §§ 7401, et seq.; the Safe Drinking

Water Act, 42 U.S.C.A. §§ 3808, et seq., and any current judicial or administrative interpretation of these laws, rules, regulations, ordinances, or rules of common law, including but not limited to any judicial or administrative order, consent decree, or judgment affecting the Project. City is committed to the construction of facilities that are friendly to the environment and that maximize energy-efficiency wherever possible. All design work under this Contract for the Project shall conform to applicable LEED standards, resulting in a constructed Project that achieves LEED certification.

Schematic Design Phase

1.1.1. Architect shall consult with City to clarify the requirements of the Facility Program for the Project and shall make the Schematic Design conform to the Facility Program requirements.

1.1.2. Architect shall survey and evaluate those environmental conditions in the immediate vicinity of the Project site which may influence the design of the Project. Architect shall, for consideration and approval by the Director, prepare the Schematic Design Studies and submit to the Director a sufficient number (as determined by the Director) of copies of drawings and other documents which illustrate the scale and relationship of the Project components within the time allotted under the agreed Performance Schedule.

1.1.3. Architect shall submit to City a Statement of Probable Construction Cost based on current area, volume or other unit costs in a form acceptable to the Director.

1.1.4. Architect will make recommendations to City where a conflict may exist between the established Project Budget and the Facility Program. The recommendations will provide for adjustments to enable construction of the facility within the budget and during the forecast period that the Project will be bid.

1.1.5. Architect shall submit outline specifications for all major elements of construction including but not limited to: structural, mechanical and electrical systems, special equipment.

1.1.6. After approval of the Schematic Design documents by the Director, Architect will submit a Statement, in triplicate, for services rendered for the unpaid balance of the Basic Fee, not to exceed fifteen (15%) percent of the Basic Fee, as authorized under Article 5.1.

Design Development Phase

1.1.7. Architect shall prepare Design Development Documents based on the approved

Schematic Design Documents to include adequate Specifications for elements of the Project for consideration and approval by the Director. A sufficient number of copies (as determined by the

Director) of the Design Development Documents will be submitted to the Director for distribution, each copy consisting of drawings and other documents to fix and describe the size, cross sections and character of the Project as to architectural, structural, mechanical and electrical systems, materials, and such other essentials as may be necessary and appropriate. The Design

Development Phase shall be completed within the agreed Performance Schedule.

1.1.8. Architect shall submit to City a Revised Statement of Probable Construction Cost in a form acceptable to the Director. Any variance in the estimated construction costs that will adversely affect the established Project Budget will be submitted to the Director with appropriate comments and recommendations prior to beginning the Construction Documents Phase.

1.1.9. After approval of the Design Development Documents by the Director, the Architect will submit a Statement, in triplicate, for services rendered for the unpaid balance of the Basic Fee, not to exceed thirty-five (35%) percent of the Basic Fee, as authorized under Article 5.1.

Construction Documents Phase

1.1.10. Architect shall prepare from the approved Design Development Documents, for consideration and approval by the Director, complete Working Drawings and Specifications. The

Working Drawings and Specifications shall set forth in complete detail the requirements of the entire Project, including the necessary bidding information prepared in such a way to allow City, if it so desires, to advertise for the award of one or more contracts for the construction and completion of the entire Project, or any phase of the Project. Architect shall also assist City in preparation of the Bidding Forms, utilizing, without modification, all of City's standard General

Conditions, and shall draft all special provisions or conditions of the Contract Documents subject to the approval of the Director. The latest edition of the City of Dallas General Conditions for

Building Construction shall be used by Architect without modification. City may, however, upon prior consultation, approve of any changes to the General Conditions that may be necessary for specific situations. Any special conditions pertaining to the Project that are approved by City will be included under the Special Conditions portion of the Construction Documents. City's standard form of construction contract between City and any Project construction Architect shall also be utilized without modification, along with City's forms of Bid Bond, Performance Bond and

Payment Bond. Architect shall obtain the approval of the Texas Department of Licensing and

Regulation prior to submittal of all Construction Documents to City for approval. Any fees charged by the Department for this approval shall be paid by Architect and billed to City as a reimbursable expense under Article 4 of this Contract.

1.1.11. Architect shall furnish City in writing a revised Statement of Probable Construction Cost, indicating cost changes resulting from changes in Project requirements or general market conditions, in a form acceptable to the Director.

1.1.12. Following approval by the Director of the Design Development Documents, Architect shall, within the agreed Performance Schedule, submit five (5) complete sets of proposed

Construction Documents to the Director for review and official approval prior to the advertisement of bids for construction of the Project. Following approval of proposed

Construction Documents, Architect shall prepare and have on hand ten (10) additional sets at

Architect's expense for bidding purposes. Should additional sets of Construction Documents be required or requested by the Director, Architect will be reimbursed for the actual cost of reproduction, upon approval in advance by City. At the same time, Architect shall also file with the Director the following items:

(a) Tracing of the Project Title Sheet, signed by Architect, with seal affixed.

(This tracing shall be returned to Architect to print contract documents when the signatures of City officials have been properly affixed).

(b) Two (2) copies of detailed cost estimates in a form acceptable to City.

(c) Two (2) bound copies of the approved Project Construction Manual. The

Project Construction Manual shall include the General Conditions, Specifications and Special Provisions, Advertisement, Instructions to

Bidders and Bid Proposal Form, City's Bid Bond, Contract, Performance and Payment Bond Forms, approved Wage Rate schedules, Federal regulations (if any are applicable to the Project), and other required documents for construction of the Project. Should additional bound copies of the Project Construction Manual be required or requested by the

Director, Architect will be reimbursed for the actual cost of reproduction, upon approval in advance by City.

Bidding Phase

1.1.13. Following City's approval of the Construction Documents and of the latest Statement of

Probable Construction Cost, Architect shall assist City in awarding a construction contract following legal public bid requirements. During the bid process, Architect shall assist City as follows:

(a) Jointly conducting pre-bid conferences, including on-site visits as required, to endeavor to assure that bidders understand the Construction

Documents, the various on-site conditions, and the coordination and scheduling requirements.

(b) Preparation of required addenda to Contract Documents.

(c) Tabulation and evaluation of bids received.

(d) Jointly conducting pre-award conferences where necessary.

Architect's assistance to City shall include submitting written reviews and recommendations for awards based upon the acceptability of bids; and, if required by City, more detailed analyses of specific bids. Reviews shall also consider the responsiveness of bids and their conformity with Bid Documents.

1.1.14. Upon award of the Construction Contract, a statement, in triplicate, for services rendered for the unpaid balance of the Basic Fee, not to exceed eighty (80%) percent of the Basic Fee as authorized under Article 5.1, shall be submitted to the Director for payment.

Construction Phase - Administration of the Construction

Contract(s)

1.1.15. The Construction Phase will commence with the award of the first Construction Contract and will terminate following the final one-year warranty inspection of the completed Project, correction of all defects in Project materials and workmanship, and resolution of all Project-related claims and disputes.

1.1.16. Architect shall provide administration of the Construction Contract as set forth in the

Construction Documents, specifically the General Conditions. Architect's assigned authority under the General Conditions will not be substantially modified without Architect's written consent.

1.1.17. Architect, as a representative of the City, shall advise and consult with the Director and will keep the Director informed in writing regarding the progress of the Project, including but not limited to percentage of construction work completed on a monthly basis, during the

Construction Phase. After issuance of the work order to any and all construction contractors on the Project, all of City's instructions to its construction contractors will be issued through

Architect.

1.1.18. Architect shall provide, during construction, adequate and competent on-site construction observation, periodically visiting the site to the extent necessary to personally familiarize itself with the progress and quality of the work, and to determine if the work is proceeding in accordance with the Contract Documents. Architect shall not, however, be required to make continuous on-site inspections to check the work. Field Reports of each visit shall be prepared by

Architect and submitted to the Director. Architect shall employ all reasonable measures to safeguard City against defects and deficiencies in the work of the Architect. Architect shall not be responsible for the construction means, methods, techniques, sequences of procedures, nor for the safety precautions and programs employed in connection with the Project work. However, Architect will immediately inform Director whenever defects and deficiencies in the Project work are observed, or when any observed actions or omissions are undertaken by any contractors or subcontractor which are not in the best interests of City or the Project.

1.1.19. Based on such observations at the site and on the Architect's Application and Certificate for Payment, Architect shall determine, monthly, the amount owing to the contractor and shall certify and forward the Architect's Application and Certificate for Payment, to the Director for approval and payment. These certifications shall constitute a representation by Architect to City, based on observations at the site and other data comprising the application for payment, that the work has progressed to the point indicated; that to the best of Architect's knowledge, information and belief, the quality of the work is in accordance with the Contract Documents, (subject to an evaluation of the work as a functioning whole upon substantial completion, to the results of any subsequent tests required by the Contract Documents, to minor deviations from the Contract

Documents, correctable prior to Project completion, and to any specific qualifications stated in the Certificate); and that the Architect is entitled to payment in the amount certified.

1.1.20. Architect shall have authority to reject work which does not conform to the Contract

Documents. Architect shall make recommendations on all claims and disputes of City or

Architect relating to the execution and progress of the work or the interpretation of the Contract

Documents, based upon such review and analysis by Architect as may reasonably be required. In the event of litigation, where Architect is named as an additional party with City, assistance will include the availability of knowledgeable witnesses in the employ of Architect for expert testimony.

1.1.21. Architect shall use its best efforts to promptly review and approve or reject shop drawings, samples and other submissions of the Architect for conformance only with the design concept of the Project and with the information given in the Contract Documents. Architect shall establish and implement precise procedures, to be approved by the Director, for expediting the processing and approval of these submissions without delay. Prompt review by Architect of submissions is of prime importance to City and an absolute necessity under the time restraints of the Project.

1.1.22. Architect shall prepare Change Orders to the construction contract, in six (6) copies, after review and approval by City. Each Change Order shall be specific and final as to prices and extensions of time, with no reservations or other provisions allowing for future additional money or time as a result of the particular changes identified and fully compensated in the

Change Order.

1.1.23. Architect shall conduct inspections to determine the dates of substantial completion and final completion, shall receive written guarantees and related documents assembled by the

Architect for submittal with the final Certificate of Payment, and shall prepare and present a final

Certificate for Payment to the Director for City's approval and payment. In addition, Architect shall make an inspection of the Project at least thirty (30) days before the expiration of the one

(1) year Warranty contained in the Architect's Performance Bond.

1.1.24. Architect shall conduct regularly scheduled progress meetings with City, each Architect and major subconsultants. Minutes of all progress meetings shall be prepared by Architect with copies submitted to the Director.

1.1.25. Architect shall have authority to order minor changes in the construction work, consistent with the Contract Documents, and not involving an adjustment in the Architect's bid price or an extension of the Project Schedule. Minor changes shall be accomplished by Field Order. In addition, Architect may issue written Field Orders which interpret the Plans and Specifications, with copies submitted to the Director.

1.1.26. Architect shall assemble and deliver to City a set of reproducible Record Construction

Drawings showing significant changes in the work during the construction process and final location of mechanical and electrical service lines and outlets, based upon marked-up prints of drawings and other data furnished by the Architect to Architect. Architect shall provide Record

Construction Specifications which will identify the changes in the specifications on a sheet, which sheet will be inserted at the beginning of each section to which they pertain.

1.2. Project Representation Beyond Basic Services

In the event that circumstances should develop whereby continuous, full-time representation at the Project site is required, the conditions under which the representation shall be furnished and the Project representatives selected, employed and directed shall be governed by a written supplemental agreement between City and Architect.

1.3. Additional Services

Architect shall perform Additional Services, as requested by City, after a not-to-exceed amount has been mutually agreed upon in writing by Director and Architect. Where authorization is required, Architect shall not proceed until the appropriate City Council Resolution (or

Administrative Action, where approval authority is delegated by City ordinance) for such

Additional Services has been adopted. The following services are not covered under Article I, which defines and outlines Architect's Basic Services. If any of these Additional Services are authorized in writing by Director in advance of their performance, they shall be paid for in the manner agreed to at the time of authorization.

1.3.1. Preparing Change Orders and supporting data or revising previously approved plans when the changes in approved Plans and Specifications are required by City. If changes are required to be made because of error, oversight, clarification, discrepancy, or budget overruns in the work of

Architect, City shall not be liable to compensate Architect for Additional Services or expenses in such connection.

1.3.2. Providing consultation concerning replacement of any Project work damaged by fire or other cause during construction, and furnishing professional services as may be required in connection with the replacement of such work, unless damage was the result of Architect's error.

1.3.3. Providing other extraordinary professional services over and above the Contract requirements, where required and requested by City, including extraordinary professional services which might result if City decides to "fast-track" the Project.

ARTICLE 2

CITY'S RESPONSIBILITIES

2.1. City shall have the following responsibilities under this Contract:

2.1.1. To provide full information regarding City’s requirements for the Project.

2.1.2. To designate, when necessary, representatives authorized to act on City’s behalf.

2.1.3. To examine documents submitted by Architect and render decisions pertaining thereto promptly, in order to avoid unreasonable delay in the orderly progress of Architect's work.

2.1.4. To observe the procedure of issuing orders to its Project Architects only through

2.1.5. To furnish, or direct Architect to obtain at City's expense, a certified survey of the site, giving, as required, grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries, contours and other data pertaining to existing buildings or adjacent to the site, other improvements and trees, full information as to available service and utility lines, both public and private, and test borings, pits, reports and soil bearing values and other necessary operations for determining subsoil conditions.

2.1.6. To furnish, or pay for structural, mechanical, chemical, soil mechanics, and other laboratory tests, reports and inspections as required by law or the Contract Documents.

2.1.7. To furnish the building permit without charge (electrical, plumbing and other trade permits will be the responsibility of all Architects on the Project; any charges which may be assessed for Dallas Water Utilities service connection fees will be paid by City and are not to be included by Architect in the Specifications for the Project).

2.2. City also agrees to provide Architect with items such as: the Project Facility Program and

Design Standards for City Buildings; two (2) copies of the City of Dallas General Conditions for

Building Construction; Instructions to Bidders and Bid Proposal Forms; Prevailing Wage Rate

Schedules; Contract and Bond Forms; Bid Advertisement Form; and other information and materials as may be necessary and practicable for the orderly and expeditious process of the

Project work and the awarding of any and all Construction Contracts for the Project. To the extent practicable, these documents shall all be utilized in the preparation of the Construction

Documents.

2.3. Architect shall be entitled to reasonably rely on the accuracy of the services, information, surveys, reports and other materials which City shall furnish at its expense.

2.4. If City observes or otherwise becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents, it shall give prompt written notice thereof to

ARTICLE 3

FIXED LIMIT OF TOTAL BUDGETED CONSTRUCTION COST

3.1. The fixed limit of total Budgeted Construction Cost for this Project is $__________. This amount is established as a condition of this Contract, and shall provide the basis for

Architect's design decisions. Architect, in consultation with City, shall determine what materials, equipment, component systems and types of construction are to be included in the

Contract Documents, and will make reasonable adjustments in the scope of the Project to bring it within the fixed limit. With the Director’s approval, Architect may also include in the Contract

Documents alternate bids to adjust the construction cost to the fixed limit. If the lowest responsible bid is within the fixed limit of total Budgeted Construction Cost for the Project, or the Architect's latest detailed estimate of Probable Construction Cost is still less than the fixed limit of total Budgeted Construction Cost for the Project, established as a condition of this

Contract, City shall pay the Architect fees for Basic Services in accordance with this Contract.

3.2. If the lowest responsible bid exceeds the fixed limit (or, in the case of multiple construction contracts bid, its portion of the fixed limit) of total Budgeted Construction Cost for the Project, and as a result thereof, or otherwise, the latest estimate of Probable Construction

Cost exceeds the fixed limit of total Budgeted Construction Cost for the Project stated in Section

3.1, established as a condition of this Contract, City, at its sole option, may either: (1) give written approval of an increase in the fixed limit, with no obligation to increase Architect's fee;

(2) authorize rebidding within a reasonable time; or (3) cooperate in revising the Project scope and quality as required to reduce the Probable Construction Cost. In the case of (3), Architect, without additional charge to City, shall immediately modify the Drawings and Specifications as necessary to bring the Project cost within the fixed limit of total Budgeted Construction Cost, or within any higher fixed limit subsequently authorized by City. The providing of the service as described above shall be the limit of Architect's responsibility to bring the Project cost within the fixed limit of total Budgeted Construction Cost, and if Architect does so, Architect shall be entitled to its fees for Basic Services in accordance with this Contract.

ARTICLE 4

REIMBURSABLE EXPENSES

4.1. Reimbursable Expenses are in addition to the fees for Basic and Additional Services and include actual expenditures made by the Architects, their employees, or their consultants in the interest of the Project for the incidental expenses set forth below. All reimbursable expenses must be authorized in advance. An allowance for Reimbursable Expenses not to exceed

$_________ is established as a condition of this Contract.

4.1.1. When authorized in advance by City, reasonable transportation and living expenses of principals and employees when traveling in connection with the Project outside of the Dallas/Fort

Worth statistical metropolitan area, essential long distance calls and telegrams, fees paid for the securing of approval of authorities having jurisdiction over the Project, postage, and reproduction of Drawings and Specifications, excluding copies for Architect's office use and the required number of sets at each phase of the work for City's review, approval, and records, shall be reimbursable.

4.1.2. If authorized in advance by City, the expense of extraordinary overtime work, not due to delays or other breach of this Contract by Architect, requiring higher than regular rates, renderings, slides, photographs or models for City's use shall be reimbursable.

4.1.3. Any fees charged to Architect by the Texas Department of Licensing and Regulation for review and approval of Design of Development documents shall be reimbursable.

4.1.4. If the employment of special consultants for specialized design services is authorized by

City, (for example, special lighting and landscape consultants, special soil mechanics engineers, communications consultants, etc.), fees for other than normally required architectural, structural, mechanical, electrical, and civil engineering services and the Basic Services defined above shall be reimbursable.

ARTICLE 5

PAYMENTS TO THE ARCHITECT

5.1. Payments on account of Architect's Basic Services shall be made monthly in proportion to the degree of completion of each Phase, but shall not exceed the following percentages of the

Basic Fee at the completion and approval of each Phase of the work:

Schematic Design Phase 15%

Design Development Phase 35%

Construction Documents 75%

Bidding Phase 80%

Construction Phase (periodic payments based upon percentage of construction completed) 100%

5.2. Payments for authorized Reimbursable Expenses and Additional Services for Architect, as referred to above, shall be made following presentation, review and approval of the Architect's detailed invoice in triplicate.

5.3. No deduction shall be made from Architect's compensation on account of penalty, liquidated damages, or other sums withheld from payments to Architects.

5.4. No addition shall be made to Architect's compensation based upon Project construction claims, whether paid by City or denied.

5.5. If any work designed or specified by Architect during any Phase is abandoned or suspended, in whole or in part, Architect is to be paid for the services performed on account of it prior to receipt of written notice from the City through its Director of such abandonment or suspension.

5.6. Architect's invoices to City shall provide complete information and documentation to substantiate Architect's charges, and shall be in a form to be specified by Director. All payments to Architect shall be made on the basis of the invoices submitted by Architect and approved by

Director. Such invoices shall conform to the schedule of services and costs in connection therewith set out hereinabove. All Reimbursable Expenses shall be clearly shown. Should additional backup material be requested by the Director, Architect shall comply promptly with the request.

5.7. City may review any and all of the services performed by Architect under this Contract.

City is granted the right to audit, at City’s election, all of Architect’s records and billings relating to the performance of this Contract. Any payment, settlement, satisfaction, or release made or provided during the course of performance of this Contract shall be subject to City’s rights as may be disclosed by an audit under this section. Architect agrees to retain the records for a minimum of three (3) years following completion of this Contract.

5.8. City reserves the right to correct any error that may be discovered in any invoice that may have been paid to Architect and to adjust the same to meet the requirements of the Contract.

Following approval of invoices, City will endeavor to pay Architect promptly, but not later than the time period required under the Texas Prompt Payment Act; however, under no circumstances shall Architect be entitled to receive interest on payments which are late because of a good faith dispute between Architect and City or because of amounts which City has a right to withhold under this Contract or state law.

5.9. City may, at its option, offset any amounts due and payable under this Contract against any debt (including taxes) lawfully due to City from Architect, regardless of whether the amount due arises pursuant to the terms of this Contract or otherwise and regardless of whether or not the debt due to City has been reduced to judgment by a court.

ARTICLE 6

ARCHITECT'S ACCOUNTING RECORDS

6.1. Records of Architect's Consultant and Reimbursable Expenses pertaining to the Project, and records of all other accounts between City and Architect shall be kept on the basis of generally accepted accounting principles and shall be available to City or its authorized representatives at mutually convenient times.

ARTICLE 7

TERMINATION, DEFAULT, TIME OF THE ESSENCE, AND FORCE MAJEURE

7.1. City, acting through the Director, may at its option and without prejudice to any other remedy City may be entitled to at law, in equity, or elsewhere under this Contract terminate further work under this Contract in whole or in part for cause or for the convenience of City by giving at least fifteen (15) days advance written notice of termination to Architect, with the understanding that all performance being terminated shall cease as of a date to be specified in the notice. City also has the right to request, at its option, that Architect assign and transfer to City all of Architect’s rights and obligations under existing subconsulting contracts it has to perform

Project work in the event of termination under this Section. City shall compensate Architect in accordance with the terms of this Contract for Project work properly performed prior to the date of termination specified in the notice, following review and acceptance of same by the Director.

Architect shall not, however, be entitled to lost or anticipated profits should City choose to exercise its option to terminate this Contract. All plans, field surveys, maps, cross sections and other data, designs and work related to the Project shall become the property of City upon termination of this Contract, and shall be promptly delivered to City in a reasonably organized form without restriction on future use. Should City subsequently contract with a new Architect for continuation of services on the Project, Architect shall cooperate in providing information.

7.2. Nothing contained in paragraph 7.1 above shall require City to pay for any work which is unsatisfactory as determined by the Director or which is not submitted in compliance with the terms of this Contract. City shall not be required to make any payments to Architect when

Architect is in default under this Contract, nor shall this Article constitute a waiver of any right, at law and at equity, which City may have if Architect is in default, including the right to bring legal action for damages or to force specific performance of this Contract.

7.3. Architect understands and agrees that time is of the essence of this Contract. Any failure of Architect to complete the services for each phase of this Contract within the agreed Project

Performance Schedule will constitute a material breach of this Contract. Architect shall be fully responsible for its delays or for failures to use its best efforts in accordance with the terms of this

Contract. Where damage is caused to City due to Architect's failure to perform in these circumstances, City may withhold, to the extent of such damage, Architect's payments owed under this Contract without waiver of any of City's additional legal rights or remedies.

7.4. Neither City nor Architect shall be deemed in violation of this Contract if it is prevented from performing any of its obligations hereunder by reasons for which it is not responsible or circumstances beyond its control. However, notice of such impediment or delay in performance must be timely given in writing, and all reasonable efforts undertaken to mitigate its effects.

ARTICLE 8

OWNERSHIP OF DOCUMENTS

8.1. All Plans and drawings will be prepared and submitted by Architect to City for approval on a minimum 24-inch by 36-inch or maximum 32-inch by 42-inch drafting sheets, with all lettering processed in ink or pencil and clearly legible when the sheets are reproduced and reduced to half size.

8.2. All Architect's designs and work product under this Contract including, but not limited to, Tracings, Drawings, Estimates, Specifications, Investigations, Studies and other documents, completed or partially completed, shall be the property of the City, to be used as City desires, without restriction on future use; by execution of this Contract and in consideration of the fee for services to be paid under the Contract, Architect hereby conveys, transfers and assigns to City all rights under the Federal Copyright Act of 1976 (or any successor copyright statute), as amended, all common law copyrights and all other intellectual property rights acknowledged by law in the

Project designs and work product developed under this Contract. Copies may be retained by

Architect. Architect shall be liable to City for any loss or damage to any such documents while they are in the possession of or while being worked upon by the Architect or anyone connected with Architect, including agents, employees, consultants or subconsultants. All documents so lost or damaged shall be replaced or restored by Architect without cost to City.

8.3. Upon completion of the construction of the Project, Architect shall, within thirty (30) calendar days following final inspection, deliver to City the reproducible Record Drawings and

Record Specifications as previously described in Section 1.1.26 hereinabove. In addition, Architect shall submit originals of all documents listed under Section 8.2, modified to actual as-built conditions.

8.4. Architect shall have no liability for changes made to the drawings by other architects subsequent to the completion of the Project. Any such change shall be sealed by the architect making that change and shall be appropriately marked to reflect what was changed or modified.

ARTICLE 9

RESPONSIBILITY FOR WORK; INDEMNIFICATION; INSURANCE

9.1. Approval by the City shall not constitute nor be deemed a release of the responsibility and liability of Architect, its employees, subconsultants, agents and consultants for the accuracy and competency of their Designs, Working Drawings, Specifications or other documents and work;

nor shall such approval be deemed to be an assumption of such responsibility by the City for any defect, error or omission in the Designs, Working Drawings, and Specifications or other documents prepared by Architect, its employees, subconsultants, agents and consultants.

9.2. A. ARCHITECT AGREES TO INDEMNIFY AND HOLD CITY, ITS

OFFICERS, AGENTS AND EMPLOYEES, HARMLESS AGAINST ANY AND ALL

CLAIMS, LAWSUITS, JUDGMENTS, COSTS AND EXPENSES FOR PERSONAL

INJURY (INCLUDING DEATH), PROPERTY DAMAGE OR OTHER HARM FOR

WHICH RECOVERY OF DAMAGES IS SOUGHT, SUFFERED BY ANY PERSON OR

PERSONS, TO THE EXTENT THAT THE DAMAGE IS CAUSED BY OR RESULTS

FROM AN ACT OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL

PROPERTY INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR

SUPPLIER COMMITTED BY THE ARCHITECT OR THE ARCHITECT’S AGENT,

CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE

ARCHITECT EXERCISES CONTROL THAT MAY ARISE OUT OF OR BE

OCCASIONED BY ARCHITECT’S NEGLIGENCE OR BREACH OF ANY OF THE

TERMS OR PROVISIONS OF THIS CONTRACT, OR BY ITS OFFICERS, AGENTS,

ASSOCIATES, EMPLOYEES OR SUBCONSULTANTS, IN THE PERFORMANCE OF

THIS CONTRACT.

B. ARCHITECT AGREES TO DEFEND CITY, ITS OFFICERS, AGENTS

AND EMPLOYEES, AGAINST ANY AND ALL CLAIMS, LAWSUITS, JUDGMENTS,

COSTS AND EXPENSES FOR PERSONAL INJURY (INCLUDING DEATH),

PROPERTY DAMAGE OR OTHER HARM FOR WHICH RECOVERY OF DAMAGES

IS SOUGHT, SUFFERED BY ANY PERSON OR PERSONS, TO THE EXTENT THAT

THE DAMAGE IS CAUSED WHOLLY OR PARTLY BY OR RESULTS FROM AN ACT

OF NEGLIGENCE, INTENTIONAL TORT, INTELLECTUAL PROPERTY

INFRINGEMENT, OR FAILURE TO PAY A SUBCONTRACTOR OR SUPPLIER

COMMITTED BY THE ARCHITECT OR THE ARCHITECT’S AGENT,

CONSULTANT UNDER CONTRACT, OR ANOTHER ENTITY OVER WHICH THE

ARCHITECT EXERCISES CONTROL THAT MAY ARISE OUT OF OR BE

OCCASIONED BY ARCHITECT’S NEGLIGENCE OR BREACH OF ANY OF THE

TERMS OR PROVISIONS OF THIS CONTRACT, OR BY ITS OFFICERS, AGENTS,

ASSOCIATES, EMPLOYEES OR SUBCONSULTANTS, IN THE PERFORMANCE OF

THIS CONTRACT. ARCHITECT AGREES TO PROVIDE FOR THE

REIMBURSEMENT OF CITY’S REASONABLE ATTORNEY’S FEES IN

PROPORTION TO ARCHITECT’S LIABILITY.

C. THE INDEMNITY PROVIDED FOR IN SECTION 9.2B SHALL NOT

APPLY TO ANY LIABILITY RESULTING FROM THE SOLE OR PARTIAL

NEGLIGENCE, BREACH OR FAULT OF CITY, ITS OFFICERS, AGENTS,

EMPLOYEES OR SEPARATE ARCHITECTS. IN THE EVENT OF JOINT AND

CONCURRENT NEGLIGENCE OF BOTH ARCHITECT AND CITY,

RESPONSIBILITY AND INDEMNITY, IF ANY, SHALL BE APPORTIONED IN

ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT,

HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO THE

CITY UNDER TEXAS LAW AND WITHOUT WAIVING ANY DEFENSE OF THE

PARTIES UNDER TEXAS LAW. ARCHITECT AGREES TO PROVIDE FOR THE

REIMBURSEMENT OF CITY’S REASONABLE ATTORNEY’S FEES IN

PROPORTION TO ARCHITECT’S LIABILITY.

D. THE OBLIGATIONS UNDER THIS SECTION 9.2 SHALL NOT BE

LIMITED IN ANY WAY BY THE LIMITS OF ANY INSURANCE COVERAGE OR

ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION,

OR BENEFITS PAYABLE BY, FOR OR TO ARCHITECT OR ANY

SUBCONTRACTOR, SUPPLIER OR ANY OTHER INDIVIDUAL OR ENTITY UNDER

ANY INSURANCE POLICY, WORKERS’ COMPENSATION ACTS, DISABILITY

BENEFIT ACTS, OR OTHER EMPLOYEE BENEFITS ACTS.

E. THE PROVISIONS OF THIS PARAGRAPH ARE SOLELY FOR THE

BENEFIT OF THE PARTIES TO THIS CONTRACT AND ARE NOT INTENDED TO

CREATE OR GRANT ANY RIGHTS, CONTRACTUAL OR OTHERWISE, TO ANY

OTHER PERSON OR ENTITY.

F. ARCHITECT AND CITY ACKNOWLEDGE AND AGREE THAT THE

PROVISIONS OF THIS SECTION 9.2 SHALL SURVIVE THE TERMINATION OR

EXPIRATION OF THE TERM OF THIS CONTRACT.

9.3 A. ARCHITECT AGREES TO DEFEND CITY, ITS OFFICERS, AGENTS

AND EMPLOYEES, AGAINST A CLAIM THAT ANY OF THE DESIGNS, PLANS OR

SPECIFICATIONS PREPARED BY ARCHITECT, ITS EMPLOYEES, ASSOCIATES

OR SUBCONSULTANTS, PURSUANT TO THIS CONTRACT INFRINGE A U.S.

PATENT OR COPYRIGHT DIRECTLY, INDIRECTLY OR CONTRIBUTORILY, TO

THE EXTENT THAT THE PATENT OR COPYRIGHT INFRINGEMENT IS CAUSED

WHOLLY OR PARTLY BY OR RESULTS FROM AN ACT OF NEGLIGENCE OR

INTENTIONAL TORT OF THE ARCHITECT, ITS OFFICERS, AGENTS AND

EMPLOYEES. ARCHITECT AGREES TO PROVIDE FOR THE REIMBURSEMENT

OF CITY’S REASONABLE ATTORNEY’S FEES IN PROPORTION TO ARCHITECT’S

LIABILITY.

B. ARCHITECT AGREES TO COMPLETELY INDEMNIFY CITY, ITS

OFFICERS, AGENTS AND EMPLOYEES, AGAINST A CLAIM THAT ANY OF THE

DESIGNS, PLANS OR SPECIFICATIONS PREPARED BY ARCHITECT, ITS

EMPLOYEES, ASSOCIATES OR SUBCONSULTANTS, PURSUANT TO THIS

CONTRACT INFRINGE A U.S. PATENT OR COPYRIGHT DIRECTLY, INDIRECTLY

OR CONTRIBUTORILY, REGARDLESS OF WHETHER OR NOT CITY IS PROVEN

TO HAVE ACTIVELY INDUCED OR CONTRIBUTED TO THE INFRINGEMENT.

ARCHITECT WILL PAY ANY AND ALL RESULTING COSTS, DAMAGES AND

ATTORNEY'S FEES FINALLY AWARDED, PROVIDED THAT:

(1) CITY PROMPTLY NOTIFIES ARCHITECT IN WRITING OF THE

CLAIM; AND

(2) ARCHITECT HAS SOLE CONTROL OF THE DEFENSE AND ALL

RELATED SETTLEMENT NEGOTIATIONS.

C. IF ARCHITECT DEFENDS CITY AGAINST SUCH CLAIMS, THE CITY

ATTORNEY OF CITY SHALL BE KEPT INFORMED OF SETTLEMENT

NEGOTIATIONS, AND SHALL EXECUTE ANY SETTLEMENT AGREEMENT

REACHED BY ARCHITECT ON CITY'S BEHALF.

D. ARCHITECT'S DEFENSE AND INDEMNIFICATION UNDER THIS

SECTION IS CONDITIONED ON CITY'S AGREEMENT THAT IF ANY OF THE

DESIGNS, PLANS OR SPECIFICATIONS, BECOME, OR IN ARCHITECT'S OPINION

ARE LIKELY TO BECOME, THE SUBJECT OF SUCH A CLAIM, CITY WILL

PERMIT ARCHITECT, AT ARCHITECT’S OPTION AND EXPENSE, EITHER TO

PROCURE THE RIGHT FOR CITY TO CONTINUE USING THE DESIGNS, PLANS

OR SPECIFICATIONS OR TO REPLACE OR MODIFY THE SAME SO THAT THEY

BECOME NON-INFRINGING; AND IF NEITHER OF THE FOREGOING

ALTERNATIVES IS AVAILABLE ON TERMS WHICH ARE REASONABLE IN

ARCHITECT'S JUDGMENT, CITY, TO THE EXTENT CITY IS LEGALLY ABLE TO

DO SO, WILL CEASE USING THE DESIGNS, PLANS OR SPECIFICATIONS ON

WRITTEN REQUEST OF ARCHITECT, IN WHICH INSTANCE CITY HAS THE

SOLE OPTION TO EITHER REQUIRE ARCHITECT TO PERFORM NEW DESIGN

WORK AT ARCHITECT’S SOLE EXPENSE, OR TO TERMINATE THIS CONTRACT.

E. ARCHITECT HAS NO LIABILITY UNDER THIS SECTION FOR ANY

CLAIM OF INFRINGEMENT BASED UPON AN INTENTIONAL TORT OR

NEGLIGENT MODIFICATION OR ALTERATION OF THE DESIGNS, PLANS OR

SPECIFICATIONS PREPARED UNDER THIS CONTRACT SUBSEQUENT TO THE

PROJECT BY CITY, OR BY ANY ARCHITECTURAL CONSULTANT

SUBSEQUENTLY EMPLOYED BY CITY.

F. THE FOREGOING STATES THE ENTIRE OBLIGATION OF

ARCHITECT WITH RESPECT TO INFRINGEMENT OF PATENTS AND

COPYRIGHTS.

G. ARCHITECT AND CITY ACKNOWLEDGE AND AGREE THAT THE

PROVISIONS OF THIS SECTION 9.3 SHALL SURVIVE THE TERMINATION OR

EXPIRATION OF THE TERM OF THIS CONTRACT.

9.4 Architect shall procure, pay for, and maintain during the term of this Contract, with a company authorized to do business in the State of Texas and otherwise acceptable to City, the minimum insurance coverage contained in Exhibit B, attached to and made a part of this

Contract. Architect must name City, its officers, agents and employees as an additional insured under Architect’s general liability insurance policy and provide any defense provided by the policy.

9.5 Approval, disapproval or failure to act by City regarding any insurance supplied by

Architect or its subconsultants shall not relieve Architect of full responsibility or liability for damages, errors, omissions or accidents as set forth in this Contract. The bankruptcy or insolvency of Architect’s insurer or any denial of liability by Architect’s insurer shall not exonerate Architect from the liability or responsibility of Architect set forth in this Contract.

ARTICLE 10

ASSIGNMENT

10.1. This Contract provides for unique professional services. Architect, therefore, shall not assign, transfer, or convey its rights, obligations, or interest in this Contract, in whole or in part, without the prior written consent of the Director.

ARTICLE 11

COMPLIANCE WITH LAWS AND REGULATIONS

11.1. This Contract is entered into subject to and controlled by the Charter and ordinances of the City of Dallas, as amended, and all applicable laws, rules, and regulations of the State of

Texas and the Government of the United States…