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HomeMy WebLinkAbout14- Standard Form of Agreement between Comma Q and City for Renovation of Storage Room at City Hall 5��>30Z f3 9� CITY OF BOZEMAN A MUNICIPAL CORPORATION 121 N Rouse Avenue • P.O.Flux 1230 • Bozeman MT 59771-1230 'r�N co.r0 Phone:406 582-2 309 . Fax:406 582-2302 STANDARD FORM OF AGREEMENT BETWEEN OWNER AND ARCHITECT/ENGINEER This AGREEMENT is made as of: March 24, 2014 BETWEEN the City of Bozeman, acting through its Superintendent of Facility Services, hereinafter identified as the"OWNER": Facilities Department, City of Bozeman P.O. Box 1230, 20 East Olive Street Bozeman, MT 59771-1230 And the ARCHITECT/ENGINEER: COMMA-Q ARCHITECTURE, INC. 109 NORTH ROUSE AVENUE BOZEMAN, MT 59715 p(406) 585-1112;f(406) 585-5518 For the following Project: RENOVATION OF STORAGE ROOM 203 to OFFICE 203 CITY HALL, 121 N ROUSE AVENUE 1 PART 1 1.1 COMPENSATION 1.1.1 The Owner shall compensate the Architect/Engineer in accordance with the full Terms and Conditions of this Agreement as follows: BASIC SERVICES AMOUNT Existing Conditions Verification and Preliminary Design (EC/PD) $540.00 Construction Documents (CD) $1,350.00 Construction Contract Administration (CA) $445.00 Basic Services Sub-Total= $2,335.00 ADDITIONAL SERVICES AMOUNT Progra mmi ng/PI a nni ng&Site 5el ecti on $0.00 Fund-Raising&Marketing $0.00 Feasibility Studi es $0.00 Fixtures,Furnishings &Equipment5ervices $0.00 Life Cycle Cost Analysis $0.00 Va I ue Engi neeri ng Stu di es $0.00 Energy Studies $0.00 Site/Topographic Surveys $0.00 Geotechni ca I Investigations/Reports $0.00 Commissioning $0.00 Record Drawings $0.00 Warranty Inspection $0.00 Additional Services Sub-Total= $0.00 TOTAL SUM FOR ALL SERVICES= $2,33S.00 1.1.2 The compensation in this Agreement is a Lump-Sum, Fixed Fee amount for all services, responsibilities, and duties of the Architect/Engineer as enumerated in Section 1.2 as required to complete the Scope of Work for the City Hall Renovation of Storage Room 203 to Office Project(the "Project") as shown on the bid specifications provided at Exhibit A. If additional services are desired or become necessary, the Owner and Architect will execute an amendment to this Agreement. If there are services required beyond the scope of this Agreement, such services shall be negotiated with the Owner. Services beyond the scope of this Agreement must be authorized by the Owner prior to performance of such services or they shall be at the Architect/Engineer's expense. 1.1.3 The Owner will make progress payments to the Architect/Engineer on account of services rendered. Should the Project proceed through construction, any remaining amounts due after Substantial Completion will be paid to the Architect/Engineer upon completion of particular service items delineated in this Agreement or upon Final Acceptance of the Project,whichever is later. 1.1.4 Each request for payment submitted by the Architect/Engineer shall be submitted to the Owner on not more than a monthly basis. The Owner has thirty (30) calendar days from the date of receipt to process payment to the Architect/Engineer of all undisputed amounts. Architectural Contract City Hall Room 203 Mar 4 2014 Page 1 of 10 1.1.5 If the Owner determines that any representations on pay requests submitted by the Architect/Engineer are wholly or partially inaccurate, the Owner may withhold payment of amounts in dispute until the inaccuracy and its cause have been corrected to the Owner's satisfaction. 1.1.6 The Owner may make deductions or withhold payment of amounts in dispute. 1.1.7 By submission of the final pay request the Architect/Engineer certifies to the Owner that all bills for materials, supplies, utilities and for all other items or services furnished or caused to be furnished and used in the execution of this Agreement have been fully paid to date and that there are no unpaid claims or demands of State or Federal Agencies, consultants, employees, or any others resulting from or arising out of any work done under this Agreement. 1.1.8 Reimbursable Expenses. 1.1.8.1 Reimbursable expenses for services as part of this Agreement are not included in the Total Sum. Reimbursable expenses shall not exceed$500.00. 1.1.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect's consultants plus fifteen percent (15%) of the expenses incurred. 1.1.8.3 Reimbursable Expenses are defined as: 1.1.8.3.1 transportation in connection with the Project, out-of-town travel and subsistence, and electronic communications; 1.1.8.3.2 document reproductions for bidding purposes, plots, standard form documents, telephone/cell phone, postage, handling and delivery; 1.1.8.3.3 expense of professional liability insurance dedicated exclusively to this Project or the expense of additional insurance coverage or limits requested by the Owner in excess of that normally carried by the Architect/Engineer and the Architect/Engineer's consultants; and, 1.1.8.3.4 other similar direct Project-related expenditures. 1.1.9 Records of expenses for all services performed, changes in service, reimbursable expenses, and other expenses shall be available to the Owner or the Owner's authorized representative at mutually convenient times. 1.1.10 Other expenses incurred by the Architect/Engineer may be compensated if authorized in advance by the Owner. All Other expenses shall be negotiated with and approved by the Owner prior to the Architect/Engineer incurring such expenses. 1.2 ENUMERATION OF AGREEMENT 1.2.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect/Engineer and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect/Engineer. This Agreement is for the following Scope of Work: Provide architectural services to renovate existing Storage Room 203 into a windowless Office space. Building elements to be addressed under this contract include: • disconnect existing floor drain, cap and recover with existing carpet the • connect new supply ductwork to existing ductwork in adjacent copy room and extend through top of copy room into new Office 203 • build a gwb soffit around new ductwork, paint to match existing ceiling and walls • repair, patch and repaint walls at ductwork extension work • add one layer of 5/8" QuietRock Soundproof Drywall to the interior side of the wall to the adjacent Server Room and the Copy Room. This will require the adjustment of the electrical devices on these walls to the new surface and finishing and painting of the walls. The services provided for the Project shall include: • Conduct site visit to verify existing conditions of utilities and dimensions of work area • Prepare preliminary drawings and estimated cost of construction for City to review and approval to proceed with construction drawings • Coordinate and prepare construction drawings with outline specification information on the drawings, for City's representative to solicit bids from subcontractors • Deliver six(6) hard copies of drawings, as well as digital pdf files of each, to the City's representative • Answer bidder questions during bid phase if required by City's representative • During Construction, attend a pre-construction site conference with selected subcontractors and the City's representative • Review and approve major construction submittals, estimate one(1)for mechanical items • Conduct one(1) substantial completion walk-through site visit with subcontractor and City's representative at the end of the construction and submit punchlist report of items to be completed Architectural Contract City Hall Room 203 Mar 4 2014 Page 2 of 10 1.2.2 By executing this Agreement the Architect/Engineer represents, acknowledges, and agrees that the Agreement incorporates all of the requirements of the documents and items enumerated above and agrees to be bound by the same. 1.2.3 Nothwithstanding the foregoing, the Owner recognizes that the Architect/Engineer is not responsible for the Contractor's performance and does not guarantee the Contractor's work. The Contractor remains solely and exclusively responsible for complying with the Contract Documents. The Architect/Engineer is not responsible for the Contractor's means and/or methods. 1.3 PROJECT TEAM 1.3.2 The Owner's Project Manager is James Goehrung (include contact info) and is authorized to act on the Owner's behalf. The Owner or the Owner's Project Manager shall render decisions in a timely manner in order to avoid unreasonable delay in the orderly and sequential progress of the Architect/Engineer's services. 1.3.3 The Architect/Engineer shall communicate and coordinate with the Owner's Project Manager in all instances regarding the Project. , pFejeGt sGheduling and arly Ather Owner req e6t6 ' budget, ' , 1.3.4 The Architect/Engineer shall communicate with other City officials and employee through the Owner's Project Manager unless given permission by the Project Manager to communicate and coordinate directly with the such other officials and employees; however, only the Project Manager is authorized to act on behalf of the Owner and no other employee or official of Owner may bind the Owner. The Owner shall likewise ensure that no official or employee other than the Project Manager shall communicate with or give directions to the Architect/Engineer. 1.3.5 The Architect/Engineer's representative shall be Ben Lloyd. The Architect/Engineer's Designated Representative shall be authorized to act on the Architect/Engineer's behalf with respect to the Project and to bind the Architect/Engineer and the Architect/Engineer's consultants. 1.4 GENERAL TERMS AND CONDITIONS 1.4.1 The Owner and Architect/Engineer shall cooperate with one another to fulfill their respective obligations under this Agreement. Both parties shall endeavor to maintain professional working relationships among all members of the Project Team. 1.4.2 Licensing Requirements. By signature on this Agreement, the declaration is made that the Architect/Engineer is professionally qualified, registered, and licensed to practice in the State of Montana. In accordance with Montana law, the Architect/Engineer shall stamp and sign any Contract Documents (drawings and specifications) prepared under this Agreement. 1.4.3 The Architect/Engineer shall be responsible for the professional quality, technical accuracy, and coordination of all concepts, programming, reports, designs, drawings, specifications, and other services furnished under this Agreement. The Architect/Engineer shall, without additional compensation, correct or revise any errors, deficiencies, or omissions in concepts, programming, reports, designs, drawings, specifications, estimates, and other services. 1.4.4 Neither the Owner's review, approval or acceptance of, nor payment for, the services required under this Agreement shall be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of services under this Agreement, and the Architect/Engineer shall be and remain liable to the Owner in accordance with applicable law for all costs and damages to the Owner caused by the Architect/Engineer's negligent performance of any of the services furnished under this Agreement. 1.4.5 Rights & Remedies. The rights and remedies of the Owner allowed by law are in addition to any rights and remedies provided in this Agreement. 1.4.6 Relationship. The relationship of the Architect/Engineer to the Owner under this Agreement is that of an independent contractor. The parties agree that Consultant is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. Architect/Engineer is not subject to the terms and provisions of the City's personnel policies handbook and may not be considered a City employee for workers' compensation or any other purpose. Architect/Engineer is not authorized to represent the City or otherwise bind the City in any dealings between Architect/Engineer and any third parties. Architect/Engineer shall comply with the applicable requirements of the Workers' Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA. Architect/Engineer shall maintain workers' compensation coverage for all members and employees of Architect/Engineer's business, except for those members who are exempted by law. Architect/Engineer shall furnish the City with copies showing one of the following: (1) a binder for workers' compensation coverage by an insurer licensed and authorized to provide workers' compensation insurance in the State of Montana; or (2) proof of exemption from workers' compensation granted by law for independent contractors. Architectural Contract City Hall Room 203 Mar 4 2014 Page 3 of 10 1.4.7 Successors and Assigns. The Owner and the Architect/Engineer each bind themselves, their partners, successors, legal representatives, and assigns to the other party to this Agreement and to the partners, successors, legal representatives and assigns of such other party in respect to all covenants of this Agreement. The Architect/Engineer shall not assign or transfer its interest in this Agreement without written consent of the Owner. Consent shall not be unreasonably withheld. Notwithstanding the provisions of this Paragraph 1.4.7, the parties recognize and agree that the Architect/Engineer will retain sub-consultants to perform certain services under this Agreement, and the Architect/Engineer shall be responsible for executing contracts with those sub-consultants. 1.4.8 Records and Documentation: 1.4.8.1 The Architect/Engineer and the Architect/Engineer's consultants shall be aware that all documentation, including electronic correspondence, in the Owner's possession are public records and the Owner is obligated to make all such records available upon request to any party or individual unless such records meet statutory requirements or Montana Administrative Rules for confidentiality and non-disclosure. 1.4.8.2 The Owner shall have access to all records, documents, correspondence, and files of the Architect/Engineer, its employees, engineers, and consultants pertaining to the Project. This access shall be continuing and survive final acceptance of the Project by the Owner or the termination of this Agreement for either cause or convenience. Such records shall be kept in a generally recognized format for a period of three (3) years from the effective date of termination of this Agreement or Final Acceptance of the Project by the Owner. All records shall be available to the Owner or their authorized representatives. The Owner does not consider documents, files, and records in the Architect/Engineer's possession or the Architect/Engineer's consultants' possession to be public records unless determined to be so by law or unless they come into the Owner's possession. Access and review does not constitute possession by the Owner. 1.4.9 The Architect/Engineer warrants that he has not employed or retained any person, partnership, or corporation, other than a bona fide employee or principal owner working for the Architect/Engineer to solicit or acquire the Project described in this Agreement. 1.4.10 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third parry against either the Owner or Architect/Engineer except as provided in the "Dispute Resolution" article of this Agreement. There are no intended third-party beneficiaries of this Agreement. 1.1.1 Nondiscrimination. The Architect/Engineer will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. The Architect/Engineer will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. The Architect/Engineer shall be subject to and comply with Title VI of the Civil Rights Act of 1964; Section 140, Title 2, United States Code, and all regulations promulgated thereunder. The Architect/Engineer shall require these nondiscrimination terms of its sub-consultants providing services under this agreement. 1.2 RESPONSIBILITIES OF THE PARTIES 1.2.1 Owner's Responsibilities: 1.2.1.1 Unless otherwise provided under this Agreement, the Owner shall provide information in a timely manner regarding requirements and parameters of the Project. The Owner shall furnish information, in conjunction with the Architect/Engineer's services, setting forth the Owner's objectives, schedule, constraints and criteria, including space requirements and relationships, special equipment, systems and site requirements as applicable to the Project. 1.2.1.2 The Owner shall examine documents submitted by the Architect/Engineer and shall render decisions pertaining thereto in a timely fashion so as not to unduly delay the performance of the Architect/Engineer. 1.2.1.3 The Owner shall furnish the services of consultants other than those designated as part of the Architect/Engineer's responsibility or authorize the Architect/Engineer to furnish them as a change in service or scope. 1.2.1.4 The Owner shall furnish testing, inspections, and reports as necessary for the Project such as special inspections, structural, mechanical, chemical, hazardous materials, and other laboratory tests, inspections, and reports not incorporated into this Agreement or shall authorize the Architect/Engineer to furnish them as a change in service or scope. 1.2.1.5 The Owner shall furnish accounting and auditing services as may be necessary for the Project as the Owner may require to ascertain how or for what purposes the Architect/Engineer has used the funds paid under the terms of this Agreement. Architectural Contract City Hall Room 203 Mar 4 2014 Page 4 of 10 1.2.1.6 If the Owner observes or otherwise becomes aware of any error, fault, omission, or defect in the Project or non-conformance with the documentation or plans and specifications prepared for the Project by the Architect/Engineer, the Owner shall give prompt written notice thereof to the Architect/Engineer. 1.2.1.7 Upon request, the Owner shall prepare for the Architect/Engineer the necessary bidding information, wage rates, and the Construction Agreement ", and other specifications deemed necessary by the Owner All contract documents and bidding information provided by the Owner shall be adhered to and complied with by the Archtiect/Engineer without modification by the Architect/Engineer unless changes are requested and/or approved by the Owner. Any changes made by the Architect/Engineer without consent of the Owner shall be the Architect/Engineer's responsibility. 1.2.2 Architect/Engineer's Responsibilities: 1.2.2.1 The Architect/Engineer's services shall be performed as expeditiously as is consistent with professional skill and care ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality, the essential orderly progress of the Project, and in accordance with the Project Schedule. The Architect/Engineer recognizes and agrees that time is of the essence of this Agreement in the performance of its services. 1.2.2.2 The Architect/Engineer shall maintain the confidentiality of information specifically designated as confidential by the Owner, unless withholding such information would violate law or create the risk of significant harm to the public. The Architect/Engineer shall require similar agreements of the Architect/Engineer's consultants to maintain the confidentiality of information specifically designated as confidential by the Owner. 1.2.2.3 Except with the Owner's knowledge and express written consent, the Architect/Engineer shall not engage in any activity, or accept any employment, other agreement, interest, or contribution that would reasonably appear to compromise the Architect/Engineer's professional judgment with respect to this Project. 1.2.2.4 The Architect/Engineer is expressly prohibited from participating in or bidding on any part of the Contract for Construction or multiple construction contracts, if any, let by the Owner. 1.2.2.5 The Architect/Engineer shall review laws, codes, and regulations applicable to the Architect/Engineer's services. The Architect/Engineer shall respond in the design of the Project to requirements imposed by governmental authorities having jurisdiction over the Project. 1.2.2.6 The Architect/Engineer shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner and/or other employees or officials of the Owner designated by the Project Manager.. The Architect/Engineer shall provide prompt written notice to the Owner if the Architect/Engineer becomes aware of any errors, omissions, or inconsistencies in such services or information. 1.3 PROJECT BUDGET 1.3.1 The Owner shall provide information regarding the Owner's project budget. While the Owner and Architect/Engineer shall endeavor to work cooperatively to establish the parameters and individual aspects of the budget, the Architect/Engineer agrees that the Owner, at its sole discretion, retains the right to establish all parameters and aspects of the budget. The Architect/Engineer shall perform its services in a manner consistent with the budget. 1.3.2 The Architect/Engineer shall review the bid specifications and project budget furnished by the Owner and make recommendations for the requirements of the Project. The Architect/Engineer shall establish the requirements and all design parameters in cooperation with the Owner that shall then become the Project Manual and the basis of design of the Project. If programming is part of the Architect/Engineer's services under this Agreement, the completed and approved programming documents shall become the Project Program and the basis of design of the Project. 1.3.3 The Owner's increase to any part of the project budget during the design process based upon the Architect/Engineer's estimate is not prima facie evidence that the Architect/Engineer is due additional fees nor does such an increase necessarily indicate a change in services to the Architect/Engineer as negotiated and agreed upon at the time of execution of this Agreement. 1.4 PROJECT SCHEDULE 1.4.1 The Owner and Architect/Engineer shall cooperatively develop an initial Project schedule consistent and compliant with the bid specifications and the Owner's needs for timely delivery of services under this Agreement. 1.4.2 The Architect/Engineer shall submit a complete initial Project schedule which shall be consistent with the time periods in the Initial Information document. 1.4.3 Adjustments to the initial Project schedule shall be made only as agreed upon by both parties and then documented as part of meeting minutes, ' , or other Architectural Contract City Hall Room 203 Mar 4 2014 Page 5 of 10 separate, schedule alteration documentation. The Architect/Engineer shall provide copies of all revised schedules to the Owner and Department. 1.4.4 Time limits established by the initial Project schedule approved by the Owner shall not be exceeded by the Architect/Engineer or Owner except as adjusted by the agreement of both parties and as documented. 1.5 CHANGE IN SERVICES 1.5.1 Change in services of the Architect/Engineer, including services required of the Architect/Engineer's consultants, may be accomplished after execution of this Agreement without invalidating the Agreement. 1.5.2 A change in the Project scope or program is not prima facie evidence that the Architect/Engineer shall be due additional fees nor does such a change necessarily indicate a change in services. 1.5.3 The parties shall negotiate and enumerate changes in services by signed, written addendum to this Agreement except for supplemental services agreed to by the Owner. A Supplemental Service agreed to by the Owner may be billed directly as part of the Architect/Engineer's pay requests without addendum. Such supplemental services do not invalidate any portion of this Agreement. 1.5.4 The Architect/Engineer shall promptly notify the Owner prior to providing any services it considers to be a change from those enumerated in this Agreement. 1.5.4.1 If the Owner deems that all or a part of such services are not required, the Owner shall give prompt notice to the Architect/Engineer, and the Architect/Engineer shall have no obligation to provide those services. 1.5.4.2 If the Owner deems that all or a part of such services are required, the Owner shall give prompt notice to the Architect/Engineer, and the two parties shall negotiate an appropriate change in services addendum to this agreement. 1.5.4.3 The Owner may determine that all or part of such services are required but is not obligated to agree that such services are a change in the services of the Architect/Engineer. All such instances shall be subject to the "Dispute Resolution" article of this Agreement. The Architect/Engineer shall continue faithful performance of services, including matters in dispute. 1.5.5 None of the following circumstances are prima facie evidence that the Architect/Engineer is experiencing a change in services for the Project, due adjustment to the schedule, or due additional compensation: 1.5.5.1 change in the instructions or approvals given by the Owner that necessitate revisions in Initial Information document, Project Manual, Project budget, Project schedule, design, or Contract Agreement unless such changes are extensive, significantly alter the basic concepts of the Project, or are done so before completion of Design Development (or Preliminary Design); 1.5.5.2 unless there is significant change in the Project size and complexity as a result of changes to the Project Manual; 1.5.5.3 performance or failure of performance on the part of the Owner or the Owner's consultants or contractors unless such performance or failure are demonstrated to have damaged the Architect/Engineer; 1.5.5.4 a dispute resolution proceeding or a legal proceeding related to the Project either during design, construction, warranty, or prior to the expiration of any applicable statute of limitations; or, 1.5.5.5 the Owner's increasing the Project budget to adequately fund the Project Manual or at any phase of design or bidding, or extension of the Project schedule. 1.6 OWNERSHIP OF DOCUMENTS 1.6.1 All reports, information, data, and other materials prepared by the Architect/Engineer pursuant to this Agreement are jointly owned by the Architect/Engineer and the Owner. The Owner has authority to release, publish or otherwise use, in whole or part, reports, information, data, and other materials prepared by the Architect/Engineer pursuant to this Agreement, unless otherwise agreed to in writing by the parties. Any re-use without written verification or adaptation by the Architect/Engineer for the specific purpose intended will be at the Owner's sole risk and without liability to the Architect/Engineer. No material produced in whole or in part under this Agreement may be copyrighted or patented in the United States or in any other country without the prior written approval of the Owner. 1.6.2 The Owner agrees to indemnify and hold harmless the Architect/Engineer from any and all claims, demands and causes of action of any kind or character arising separate from this Project as a result of reuse of the documents developed under this Agreement. Architectural Contract City Hall Room 203 Mar 4 2014 Page 6 of 10 1.6.3 The Owner is restricted from using the Architect/Engineer's license seal/stamp/signature in any form or manner as part of any reuse of documents developed under this Agreement. The Architect/Engineer may not remove its license seal/stamp/signature from the Contract Documents used to construct the Project but may do so from electronic and hard copy Record Drawings delivered to the Owner. 1.6.4 The Architect/Engineer shall have the right to include photographic or artistic representations of the design and construction of the Project among the Architect/Engineer's promotional and professional materials. The Architect/Engineer shall be given reasonable access to the completed Project to make such representations. However, the Architect/Engineer's materials shall not include the Owner's confidential or proprietary information regardless of whether the Owner has previously advised the Architect/Engineer in writing of the specific information considered by the Owner to be confidential or proprietary. 1.7 DISPUTE RESOLUTION 1.7.1 The Owner and Architect/Engineer shall endeavor to resolve controversies, claims, disputes, and other matters in question between them through good faith debate, discussion, and negotiation prior to submitting them to mediation or other legal proceeding. 1.7.2 During all debate, discussion, negotiation, and mediation, proceedings, the Architect/Engineer and the Owner shall continue with performance of services in accordance with this Agreement, including matters in dispute. The Owner shall continue to make payment for services not in dispute in accordance with this Agreement. 1.7.3 Any and all controversies, disputes, claims, or other matters between the parties arising out of or related to this Agreement shall be decided and settled in accordance with this Agreement and applicable law. 1.7.4 Gallatin County, State of Montana, shall be the venue for all mediation, litigation or court proceedings unless otherwise agreed upon in writing by both parties. State of Montana law shall govern this Agreement and all dispute resolution and legal proceedings. 1.7.5 In no event shall any claim or dispute be made after the date when institution of legal or equitable proceedings based on such claim, dispute, or other matter in question would be barred by the applicable statute of limitations. 1.7.6 Mediation: 1.7.6.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to non-binding mediation as a condition precedent to the initiation of litigation. 1.7.6.2 1.7.6.3 Request for mediation shall be filed in writing with the other party to the Agreement and the parties shall endeavor to agree upon a mediator and a location for the proceedings. 1.7.6.4 1.7.6.5 1.7.7 Dispute Between Owner and Contractor (the term "Contractor" includes any General Contractor/Construction Manager or Construction Manager at Risk): 1.7.7.1 In the event a dispute arises between the Owner and Contractor, or any other party, whether before, during, or after construction, the Architect/Engineer shall advise and consult with the Owner in attempting to resolve the dispute, whether informally or by mediation, or other legal proceeding. 1.7.7.2 The Architect/Engineer will make himself and/or his consultants, agents, and employees available and shall permit inspection of his records by the Owner. . 1.7.7.3 1.7.7.4 The Owner will not be required to reimburse the Architect/Engineer for matters in dispute at any time prior to a final determination or resolution of any claim or dispute. In the event the Architect/Engineer caused, in whole or in part, the dispute or controversy, the Architect/Engineer shall bear his costs for participating in the resolution. 1.7.8 The Architect/Engineer and the Owner waive all consequential damages against each other that arise as a result any claims, disputes, or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all consequential damages as a result of either party's termination in accordance with this Agreement. 1.8 INDEMNIFICATION/INSURANCE 1.8.1 Insurance. Architect/Engineer shall secure insurance coverage acceptable to the City and furnish to the City an accompanying certificate of insurance issued by a company authorized to do business in the State of Montana in amounts not less than as follows: Architectural Contract City Hall Room 203 Mar 4 2014 Page 7 of 10 Workers'Compensation-statutory Employers' Liability-$1,000,000 per occurrence; $2,000,000 annual aggregate Commercial General Liability-$1,000,000 per occurrence; $2,000,000 annual aggregate Automobile Liability-$1,000,000 property damage/bodily injury; $2,000,000 annual aggregate Professional Liability-$1,000,000 per claim; $2,000,000 annual aggregate This policy is an "expense within limits"policy and the applicable policy limit is reduced by attorney's fees or costs incurred in defense of a claim, and by any judgment or settlement payments The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non-contributory basis on both the Commercial General and Automobile Liability policies. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non- renewal. The City must approve all insurance coverage and endorsements prior to the Consultant commencing work. The Architect/Engineer shall protect, defend, and save the Owner, its elected and appointed officials, agents, agencies, and employees while acting within the scope of their duties as such harmless from and against all claims, liabilities, demands, causes of action, and judgments whatsoever (including the cost of defense and reasonable attorney fees) arising in favor of or asserted by third parties on account of damage to property, personal injury, or death which injury, death, or damage, arises out of services performed or omissions of services or in any way results from the negligent acts or omissions of the Arch itect/Engineer, its agents, or sub- consultants. The Owner shall protect, defend, and save the Architect/Engineer, its agents and employees, while acting within the scope of their duties as such, harmless from and against all claims, liabilities, demands, causes of action, and judgments whatsoever (including the cost of defense and reasonable attorney fees) arising in favor of or asserted by third parties on account of damage to property, personal injury, or death which injury, death, or damage, arising out of or in any way results from the negligent acts or omissions of the Owner, its elected and appointed officials, agents, and employees. 1.8.2 Indemnification and Hold Harmless. For other than professional services rendered, to the fullest extent permitted by law, Architect/Engineer agrees to, indemnify, and hold the City its elected and appointed officials, agents, agencies, and employees harmless against claims, demands, suits, damages, losses, and expenses connected therewith that may be asserted or claimed against, recovered from or suffered by the City by reason of any injury or loss, including but not limited to, personal injury, including bodily injury or death, property damage, occasioned by, growing out of, or in any way arising or resulting from any intentional or negligent act on the part of Architect/Engineer or Architect/Engineer's agents or employees. For the professional services rendered, to the fullest extent permitted by law, Architect/Engineer agrees to indemnify and hold the City its elected and appointed officials, agents, agencies, and employees harmless against claims, demands, suits, damages, losses, and expenses, including reasonable defense attorney fees, to the extent caused by the negligence or willful misconduct of the Architect/Engineer or Architect/Engineer's agents or employees. The above obligations shall survive termination of this agreement. 1.9 TERMINATION OR SUSPENSION OF THIS AGREEMENT 1.9.1 If either party fails to comply with any condition of this Agreement at the time or in the manner provided for, the other party, at its option, may terminate this Agreement and be released from all obligations if the default is not cured within ten (10) days after written notice is provided to the defaulting party. Said notice shall set forth the items to be cured. Additionally, the non- defaulting party may bring suit for damages, specific performance, and any other remedy provided by law. These remedies are cumulative and not exclusive. Use of one remedy does not preclude use of the others. Notices shall be provided in writing and hand-delivered or mailed to the parties at the addresses set forth on the cover sheet of this Agreement. 1.9.2 If the Architect/Engineer fails to fulfill his obligations and the Agreement is terminated, the Owner may prosecute the Project to completion by contract or other means available. The Architect/Engineer shall be liable to the Owner for any and all additional costs incurred due to the Architect/Engineer's failure to perform. The rights and remedies available to the Owner provided herein are in addition to any and all other rights and remedies provided by law or equity. 1.9.3 If the Owner fails to make payments to the Architect/Engineer in accordance with this Agreement, such failure shall be considered substantial non-performance and cause for termination subject to the written notice provision above or, at the Architect/Engineer's option, cause for suspension of performance of services under this Agreement. If the Architect/Engineer elects to suspend services, prior to suspension of services the Architect/Engineer shall also give ten (10) days written notice to the Owner. In the event of a suspension of services, the Architect/Engineer shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. The Architect/Engineer shall resume services upon corrective action or submission of a corrective action plan by the Owner. Architectural Contract City Hall Room 203 Mar 4 2014 Page 8 of 10 1.9.4 The Architect/Engineer cannot terminate this Agreement or suspend services if the Project is suspended or delayed by the Owner. The Owner shall notify the Architect/Engineer concerning any suspension or delay and may direct the Architect/Engineer to suspend services accordingly. If the Owner suspends or delays the Project for 12 months or more, the Owner agrees to negotiate compensation with the Architect/Engineer for reasonable expenses incurred for re- starting work, and agrees to compensate the Architect/Engineer for any increases in costs or expenses resulting from the suspension or delay. 1.9.5 Any and all expenses, termination costs, anticipated overhead and profit, and consequential costs as a result of any delay, suspension, or termination of this Agreement are specifically excluded and shall not be due the Architect/Engineer. 2 PART 2 2.1 PROJECT ADMINISTRATION AND MANAGEMENT(FOR PART 2) 2.1.1 The Architect/Engineer shall be responsible for managing all the Architect/Engineer's services and administration of the Scope of Work under this Agreement in accordance with this Agreement. The Architect/Engineer shall consult with the Owner, research applicable design criteria, attend Project meetings, maintain a Project contact list, communicate with members of the Project team, issue progress reports and meeting minutes via email to the Owner and Department unless another manner of distribution is agreed upon. 2.1.2 The Architect/Engineer shall establish the requirements and all design parameters in cooperation with the Owner. If Programming is part of the Arch itect/Engineer's services under this Agreement, the completed and approved Programming Documents shall become the Project Program and the basis of design of the Project 2.1.3 2A.4 The Architect/Engineer shall coordinate the services provided by the Architect/Engineer and the Architect/Engineer's consultants with those services provided by the Owner and the Owner's consultants. 2.1.5 Upon request of the Owner, the Architect/Engineer shall make presentations to explain the Project Program, concepts, and design of the Project to other interested parties as coordinated by the Owner. 2.1.6 The Architect/Engineer shall submit documents to the Owner at intervals appropriate to the programming and concept process for purposes of evaluation and approval by the Owner. The Architect/Engineer shall be entitled to rely on approvals received from the Owner in the further development of the design. 2.1.7 The Architect/Engineer shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. 2.2 EVALUATION DATA GATHERING,ANALYSIS, STUDIES,AND REPORTS 2.2.1 The Architect/Engineer shall provide a preliminary evaluation of the bid specifications furnished by the Owner under this Agreement. The Architect/Engineer shall review such information to ascertain that it is consistent with the requirements of the Project and shall notify the Owner of any other information or consultant services that may be reasonably needed for the Project. 2.2.2 The Architect/Engineer shall provide a preliminary evaluation of the Owner's site for the Project based on the information provided by the Owner regarding site conditions, and the Owner's Initial Information, schedule, and budget. 2.2.3 The Architect/Engineer shall perform a data gathering effort regarding the Owner's initial conditions for the Project. Such data gathering effort shall involve, but not be limited to, an initial meeting to define data gathering parameters, proposed site locations, potential utilities, traffic patterns, pedestrian flow, aesthetic and architectural aspects of other facilities in the area in order to provide essential input to the Project Program and the Owner's decision-making process. 2.2.4 For existing facilities to be renovated, demolished, or rehabilitated, data gathering shall consist of: initial meeting to define data gathering parameters; preparation of site drawings and complete as- built CAD drawings of the existing facility (or area affected by the work) of architectural, mechanical, electrical and structural conditions if none are provided by the Owner; establishment of project boundaries; code evaluation of the existing facility; determination of all utility connections; hazardous materials investigation and report; prepare and analyze existing data pertaining to the facility's function, location, and operation. 2.2.5 The Architect/Engineer shall prepare and maintain the information obtained in data gathering for presentation to the Owner and inclusion into the Project Program. 2.2.6 If feasibility studies are requested by the Owner, the Architect/Engineer shall perform a detailed investigation and analysis to determine the technical, financial, and functional viability of the proposed Project. Fees for feasibility studies shall be incorporated into the costs of Programming or indicated separately in the Architect/Engineer's compensation. 2.3 EVALUATION OF THE BUDGET AND ESTIMATE OF CONSTRUCTION COST Architectural Contract City Hall Room 203 Mar 4 2014 Page 9 of 10 2.3.1 When the Project requirements have been sufficiently identified, the Architect/Engineer shall prepare an estimate of construction cost. This estimate may be based on current area, volume, similar conceptual or recent construction history estimating techniques. If programming is included in the Architect/Engineer's services under this Agreement, the Architect/Engineer shall update and refine the estimate of construction cost throughout the programming process. The Architect/Engineer shall advise the Owner of any adjustments to previous estimates indicated by changes in Project requirements or general market conditions. If at any time the Arch itect/Engineer's estimate of construction cost exceeds the Owner's budgeted construction cost, the Architect/Engineer shall make appropriate recommendations to the Owner to adjust the Project's size, quality, or budget. 2.3.2 Evaluations of the Owner's budget for the Project, the estimate of construction cost, and updated estimates of construction cost prepared by the Architect/Engineer, are to represent the Architect/Engineer's best judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Architect/Engineer nor the Owner has control over the cost of labor, materials or equipment, the selected contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Architect/Engineer cannot and does not warrant or present that bids or negotiated prices will not vary from the Owner's budget for the Project or from any estimate of construction cost or evaluations prepared by the Architect/Engineer. 2.3.3 The Construction Cost is part of the Project Budget and shall be the total "Hard" costs or, to the extent the Project is not completed, the estimated cost to the Owner of all elements of the Project programmed, designed, or specified by the Architect/Engineer. Estimates of Construction Cost shall include the cost at projected market rates of labor and materials and equipment designed, specified, selected or specially provided for by the Architect/Engineer, including the costs of management or supervision of construction or installation provided by a separate construction manager or contractor, plus a reasonable allowance for their overhead and profit. The Estimate of Construction Cost does not include"Soft"costs as defined in the Agreement. EXECUTION OF THIS AGREEMENT This Agreement entered into as of the day and year first written above: Architect/Engineer: Signature Ben Lloyd Print Architect/President Title Is this company incorporated?Yes No Person signing for the ArchitectlEngineer shall be a principal owner in the firm or a corporate officer and be legally able to bind the Architect/Engineer to all provisions of this Agreement. Owner: CITY OF BOZEMAN CHRIS KUKULSKI City Manager for the CITY OF BOZEMAN Date APPROVED AS TO FORM: GREG SULLIVAN City Attorney for the CITY OF BOZEMAN w ° Attest: r BY ■ ° (Clerk of Commission) Page 10 of 10 CoArchitectural Contract City Hall Room 203 Mar 4 2014 °,.° t:ti'