Agreement for Architectural Services
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AGREEMENT FOR ARCHITECTURAL SERVICES
BETWEEN
AND
THE BOARD OF REGENTS OF THE REGIONAL UNIVERSITY SYSTEM OF OKLAHOMA
By and Through the
UNIVERSITY OF CENTRAL OKLAHOMA
______[Date]
EDMOND, OKLAHOMA
University of Central Oklahoma AGREEMENT FOR ARCHITECTURAL SERVICES Table of Contents
Effective Date Page 1 Recitals Page 1 1. REPRESENTATIONS AND WARRANTIES OF ARCHITECT Page 1 2. GENERAL PROFESSIONAL STANDARDS Page 2 3. BASIC SERVICES OF THE ARCHITECT Page 2 4. SCHEMATIC DESIGN PHASE Page 4 5. DESIGN DEVELOPMENT PHASE Page 5 6. CONSTRUCTION DOCUMENTS PHASE Page 6 7. AWARD OF CONSTRUCTION AGREEMENT PHASE Page 7 8. CONSTRUCTION PHASE - DUTIES, OBLIGATIONS AND RESPONSIBILITIES Page 7 9. ADDITIONAL SERVICES OF THE ARCHITECT Page 11 10. REIMBURSABLE EXPENSES Page 13 11. SERVICE SCHEDULE Page 14 12. PERSONNEL Page 14 13. PROJECT BUDGET, MAXIMUM CONTRACT PRICE, AND EXCESSIVE CONSTRUCTION COSTS Page 14 14. DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE OWNER Page 16 15. APPROVAL OF PLANS Page 17 16. FEES & PAYMENT TO ARCHITECT Page 17 17. PROJECT RECORDS Page 20 18. OWNERSHIP OF DOCUMENTS Page 20 19. INDEMNITY Page 21 20. INSURANCE Page 22 21. GOVERNING LAW Page 23 22. SUCCESSORS AND ASSIGNS Page 24 23. NO THIRD PARTY BENEFICIARIES Page 24 24. TERMINATION Page 24 25. DEFAULT & BREACH, CURE Page 24 26. NOTICES Page 25 27. WAIVER Page 25 Approved as to Form, 051906 UCO Office of Legal Counsel JBM ii UCO Standard Agreement for Architectural Services 28. FORCE MAJEURE Page 25 29. ENTIRE AGREEMENT Page 26 30. RELATIONSHIP OF PARTIES Page 26 31. ATTORNEY’S FEES Page 26 Signatures Page 26 NON COLLUSION AFFIDAVIT Page 28 Attachment A, ADDITIONAL SERVICES BILLING RATES Page 29
Approved as to Form, 051906 UCO Office of Legal Counsel JBM iii UCO Standard Agreement for Architectural Services The University of Central Oklahoma AGREEMENT FOR ARCHITECTURAL SERVICES
This Agreement for Architectural Services (the "Agreement") is made and entered into by and between The Regional University System of Oklahoma by and through The University of Central Oklahoma, an agency of the State of Oklahoma, (the "OWNER") and ______, a ______(corporation or business form) whose business address is ______(the "ARCHITECT" whether one or more).
Effective Date: This Agreement shall be effective on the date it is executed by the last party to execute it.
Recitals: A. OWNER intends to construct a ______(Insert Complete Description), on University property in Edmond, Oklahoma County, Oklahoma, pursuant to a lump sum, competitive bidding process including possible alternates (the “PROJECT”).
B. OWNER desires to engage ARCHITECT to perform certain professional services relating to the PROJECT and ARCHITECT desires to perform said professional services for OWNER.
C. ARCHITECT agrees to perform for the above named PROJECT all of the professional services hereinafter set forth, subject to all the terms, conditions, and provisions of this Agreement
D. OWNER agrees to pay ARCHITECT as compensation for ARCHITECT’S services those sums hereinafter set forth in this Agreement subject to all the terms, conditions, and provisions of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and agreements set forth herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, OWNER and ARCHITECT agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF ARCHITECT. ARCHITECT represents and warrants the following:
A. ARCHITECT is professionally qualified to act as ARCHITECT for the PROJECT, is experienced in the design and rendering of Architectural services for buildings and facilities of comparable function and complexity and is licensed to practice Architecture by all public entities having jurisdiction over ARCHITECT and the PROJECT; and,
B. ARCHITECT has become familiar through site visits with the PROJECT site and the local conditions under which the PROJECT is to be designed, constructed and operated.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 1 UCO Standard Agreement for Architectural Services 2. GENERAL PROFESSIONAL STANDARDS. ARCHITECT shall:
A. Assure that the PROJECT as designed by ARCHITECT will comply with all applicable laws, ordinances and codes, including, but not limited to: IBC, EPA, OSHA, and other applicable federal, state and University (OWNER) codes and regulations; that the structure will be suitable and safe for its intended uses; that the structures and foundations will be adequate to meet the floor loads established in building codes and design criteria; that the code required design wind loads, roof loads and such other criteria utilized in the locale of PROJECT will be utilized; and that the electrical, mechanical, and all other elements and systems will be adequate to meet the design criteria needs of the PROJECT.
B. Assure that all professionals rendering design and engineering services for the PROJECT shall have and continue to maintain all necessary licenses to practice architecture and/or engineering, as the case may be, in the State of Oklahoma until the Architect’s duties hereunder have been fully performed.
C. Assure that all construction documents required by this Agreement, including, but not limited to, all contract drawings, plans and specifications shall be reasonably accurate, coordinated and adequate for construction whether the same are prepared by ARCHITECT, its employees, agents, Sub-consultants (“Sub-consultants”), Consultants (“Consultants”) or subcontractors.
D. Assure that all drawings prepared by architects and engineers in the employ of the ARCHITECT shall be stamped with licensing seals of the architects and engineers doing such work as required by law and regulations.
E. Sub-consultants or Consultants, the work of which is related to, or for, the PROJECT, shall be subject to approval by OWNER, which approval shall not be unreasonably withheld, and all contracts by and between ARCHITECT and any such Sub-consultant or Consultant shall explicitly require each such Sub-consultant or Consultant to be bound to ARCHITECT and OWNER according to the standards set forth in this paragraph and to the provisions of Paragraphs 4, 5, 6, 7, 8, 9, 17, 18, 19 and 20 hereof.
3. BASIC SERVICES OF THE ARCHITECT
ARCHITECT’s Basic Services shall consist of five phases described below and include the services of customary design professional Sub-consultants or Consultants including civil, structural, mechanical and electrical engineering services for the PROJECT. In regard to such Basic Services, ARCHITECT agrees:
A. That all plans, specifications, detailed drawings, construction observation, and related work for civil, structural, electrical and mechanical engineering services shall be done by employees of its own organization, by persons regularly engaged and particularly qualified by training and experience to do the required work, or if ARCHITECT’s employees are not available or qualified to perform any of the specified engineering services required for the PROJECT, ARCHITECT agrees to employ outside Sub-
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 2 UCO Standard Agreement for Architectural Services consultants or Consultants who are similarly engaged and qualified at no cost to OWNER and subject to OWNER’s prior written approval .
B. Under the Basic Services provisions of the Contract, ARCHITECT and its professional consultants shall visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed work and to determine if the work is being performed in a manner indicating that the work, when complete, will be in accordance with the Contract Documents. ARCHITECT shall include, within Basic Services, site visit(s) of no less than one and one half days (1.5 days) (12 hours minimum) per week. On the basis of on-site observations as an architect, ARCHITECT shall keep OWNER informed of the progress of the work and ARCHITECT shall endeavor to obtain proper fulfillment of said work as required by the Plans and Specifications and to recommend any changes, if necessary, to obtain good workmanship and the installation and use of materials as specified. ARCHITECT shall by general observation; guard OWNER against defects and deficiencies in workmanship and materials. ARCHITECT shall require the Contractors engaged in the performance of the construction work to comply with the requirements of the Construction Documents in that ARCHITECT shall reject any observed work that fails to comply. In every known instance of failure of the Contractor or any Subcontractor to follow the Construction Documents, ARCHITECT shall immediately order the work corrected and notify OWNER or its authorized representative of such action.
C. Examining or investigating existing conditions, or measuring or otherwise verifying the accuracy of drawings, such as investigation of existing structural conditions of a building or for checking accuracy of as-builts prior to using them as a basis for new contract, construction, or PROJCET documents, or because it is required as an essential step to beginning the PROJECT for OWNER.
D. The following costs are not reimbursable and are included within the fees for Basic Services:
(1) Normal office overhead including FAX and telephone costs,
(2) Postage, handling, delivery and shipping costs of normal and routine PROJECT work items and/or transfer of normal PROJECT work items between ARCHITECT and its Sub-consultants, consultants or subcontractors in the routine performance of the PROJECT;
(3) Office expenses relating to PROJECT documents including copies of plans for ARCHITECT and Sub-consultants use, reproductions, plotter expenses, standard form documents, computers and other electronic or technical equipment, and other ARCHITECT or Sub-consultants work and/or progress copies normally required for the routine performance of the PROJECT; and
(4) As pertains to the PROJECT, ARCHITECT agrees to provide services as an expert witness in connection with any public hearing, arbitration/mediation proceeding or other proceedings of a court of record, when required and such agreement shall survive the termination of this Agreement.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 3 UCO Standard Agreement for Architectural Services 4. SCHEMATIC DESIGN PHASE
A. Consultation with Owner and Probable Construction Costs:
(1) In the Schematic Design Phase ARCHITECT shall consult in detail with OWNER and shall carefully analyze any information furnished by OWNER concerning requirements of the PROJECT, including but not limited to any design, construction, scheduling, budgetary or operational requirements. Thereafter, ARCHITECT shall prepare and submit to OWNER a written report setting forth a summary of such requirements, a preliminary estimate of the Probable Construction Costs, as defined herein, based on ARCHITECT’s recommendations (including design alternatives) and detailing ARCHITECT's understanding of the PROJECT requirements and identifying any design, construction, scheduling, budgetary, operational, or other problems that may result from said requirements.
(2) ARCHITECT shall submit to OWNER a preliminary estimate of Probable Construction Cost based on current area, volume or other unit costs. If the preliminary estimate of Construction Cost exceeds the funds estimated by OWNER to be available, OWNER shall, with ARCHITECT’s assistance, modify the scope of the PROJECT to be consistent with the funds then estimated to be available. As used in this Agreement, the term ‘Probable Construction Costs’ shall mean the estimated total cost to OWNER based upon ARCHITECT’s best professional judgment of all elements of the PROJECT designed or specified by ARCHITECT and shall include, among other things: current costs of labor, materials and equipment required for construction of the PROJECT, reasonable allowances for the construction contractor’s overhead and profit, a reasonable allowance for contingencies for market and other conditions at the time of bidding, and changes in the work during construction. Except as may be specifically provided elsewhere herein, the term does not include the compensation of: ARCHITECT and ARCHITECT’s Sub- consultants, Consultants, the costs of the land, rights-of-way, financing or other costs that are the responsibility of OWNER; or which will be separately contracted for and are listed in the table of costs in Paragraph 13 hereof.
B. The Schematic Design Phase shall include, but not be limited to, the following:
(1) ARCHITECT shall consult with OWNER to ascertain the requirements of the PROJECT and shall confirm such requirements to OWNER in writing; such consultation shall occur in meetings as reasonably determined by OWNER’S representative(s) and potential users of the PROJECT. ARCHITECT shall conduct a field investigation of all existing elements and systems in the areas of the UCO campus affected by the PROJECT.
(2) ARCHITECT shall prepare a Schematic Design Phase Report, with studies and documents, consisting of drawings and other descriptive elements illustrating the scale and relationship of PROJECT components for approval by OWNER. Schematic Design Studies shall be conceptual in character and based on the Approved as to Form, 051906 UCO Office of Legal Counsel JBM 4 UCO Standard Agreement for Architectural Services program requirements and shall include construction-sequencing possibilities and shall be revised as necessary to obtain OWNER’s approval.
C. ARCHITECT shall provide to OWNER at ARCHITECT’s expense five (5) sets of completed Schematic Design Phase Documents for review purposes. Additional completed sets required by Owner shall be provided at OWNER’S expense.
5. DESIGN DEVELOPMENT PHASE
Upon authorization by OWNER, and after reviewing with OWNER the Schematic Design Phase Report, Studies and Documents required by Paragraph 4 hereof, and after incorporating any changes or alterations authorized or directed by OWNER with respect to the Schematic Design Phase Report, Studies or Documents or with respect to the requirements of the PROJECT, including without limitation adjustments to stay within the Maximum Contract Price as defined in Paragraph 13 hereof, ARCHITECT shall prepare and submit to OWNER the requested number of copies of the Design Development Phase documents for the PROJECT. The Design Development Phase shall address all requirements of the PROJECT, if and as modified with OWNER’s consent, and shall include the following:
A. The Design Development Documents (based upon the approved Schematic Design Phase Documents) consisting of plans, elevations and other drawings, and outline specifications, which fix and illustrate the size and character of the entire PROJECT in its essentials as to the type of structure; kinds of materials, both exterior and interior; proposed color selections; mechanical and electrical systems; fixed equipment and such other work as may be required. ARCHITECT shall meet with OWNER’s representative and potential users of the PROJECT at least twice monthly during this phase.
B. After all design considerations have been established and approved by OWNER as provided in this paragraph, ARCHITECT shall submit to OWNER a further preliminary estimate of Probable Construction Cost, revised to recognize current changes to, and refinements in, the design scheme.
C. Design Development Phase drawings shall illustrate:
(1) The basic components of the PROJECT including the size, scale, location, dimensions, and character of each building structure;
(2) The exterior view of the PROJECT;
(3) A floor plan for each room of the PROJECT and the dimensions thereof; and
(4) Where appropriate, the architectural, electrical, mechanical and structural systems of the PROJECT;
D. Additional Design Development Documents to be provided by ARCHITECT shall include:
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 5 UCO Standard Agreement for Architectural Services (1) A written description of the materials to be incorporated into the PROJECT, material samples where appropriate, and the location of same;
(2) Materials needed for preliminary color selections where appropriate; and,
(3) Any other reasonable documents or things required to illustrate, describe or depict the Design Development Phase and the conformity of same with OWNER’s requirements for the PROJECT.
E. ARCHITECT shall provide to OWNER at ARCHITECT’s expense five (5) sets of completed Design Development Documents for review purposes. Additional completed sets required by Owner shall be provided at OWNER’s expense.
6. CONSTRUCTION DOCUMENTS PHASE
The Construction Documents Phase shall include, but not be limited to, the following:
A. Before preparing the Construction Documents, unless OWNER elects to do so separately with written authorization from OWNER, ARCHITECT shall retain an experienced, qualified geo-technical consultant to prepare testing and evaluate all geo- technical considerations relating to the design and construction of the PROJECT; such consultant’s fees and reasonable expenses shall be a Reimbursable Expense as identified below in Paragraph 10. ARCHITECT shall thoroughly study the analyses and recommendations of the geotechnical consultant and fully and properly take them into account in designing the PROJECT.
B. Upon authorization by OWNER, and after reviewing with OWNER the Design Development Phase plans, drawings, elevations, renderings, estimates and other materials required by Paragraph 5 hereof, and after incorporating any changes or alterations authorized or directed by OWNER, if and as modified, with respect to the Design Development Phase or with respect to OWNER’s requirements for the PROJECT, ARCHITECT shall prepare and submit to OWNER five (5) sets of the Construction Documents, which shall include drawings, plans and specifications that describe with specificity all elements, details, components, materials, and other information necessary for bidding and construction of the PROJECT and the Construction Documents shall include drawings, plans and specifications, which set forth in detail the work to be done and the materials, workmanship, finishes and equipment required for the structural, mechanical, electrical, service-connected equipment and site work. Products, equipment and materials specified for use shall be reasonably available unless written authorization to the contrary is given by OWNER.
C. ARCHITECT shall assist in preparing the necessary bidding information, General Conditions of the Contract and Supplementary General Conditions of the Contract and shall prepare and furnish bid forms and assist in preparing other forms or contracts for the furnishing of materials, equipment and performance of labor which may be necessary for the construction of the PROJECT.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 6 UCO Standard Agreement for Architectural Services D. Prior to completion of the bid package, an estimate of funds available for Construction Cost initially prepared by OWNER and reviewed by ARCHITECT as identified hereinafter shall be deemed to be OWNER’s adjusted Maximum Contract Price unless OWNER advises ARCHITECT in writing of further adjustments to such Maximum Contract Price. ARCHITECT shall prepare an updated estimate of Probable Construction Costs in a detailed form during the latter stages of the Construction Documents Phase and no later than at 90% completion of Construction Documents. ARCHITECT shall provide for a base bid project element in an amount no higher than ninety five (95%) percent of the Adjusted Maximum Price, not including any available contingency funds. ARCHITECT immediately shall inform OWNER of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in scope, requirements or market conditions in order that necessary changes may be made prior to completion of the Contract Documents.
E. ARCHITECT shall assist OWNER in filing any required documents to secure approval of governmental authorities having jurisdiction over the design of the PROJECT, including, but not limited to, the Oklahoma State Fire Marshal and the Oklahoma State Department of Health.
F. ARCHITECT shall provide at its expense five (5) sets of completed Bidding Documents for OWNER review purposes. Additional completed sets of Bidding Documents required by OWNER shall be provided to OWNER at OWNER’s expense.
7. AWARD OF CONSTRUCTION AGREEMENT PHASE. During the Award of Construction Agreement Phase the duties of ARCHITECT shall include, but not be limited to, the following:
A. ARCHITECT shall prepare all information necessary for the competitive bidding of the PROJECT in accordance with all applicable provisions of Oklahoma law and policies and procedures of the Board of Regents of Oklahoma Colleges;
B. ARCHITECT shall assist OWNER in the bidding process and in obtaining bids from qualified contractors, attend bid openings, prepare and submit a tabulation of bids, and assist OWNER with the comparative analysis and review of bids to determine the lowest bona fide bid and in awarding and preparing Construction Agreement documents;
C. ARCHITECT shall conduct a preconstruction conference after award of the contract but prior to commencement of construction. The purpose of said conference shall be to review the duties, obligations and responsibilities of OWNER, Contractor, and ARCHITECT during construction and for such other purposes as OWNER may require; and
D. ARCHITECT shall file any required documents to secure approval of governmental authorities having jurisdiction over the PROJECT, including but not limited to, the Oklahoma State Fire Marshal, the Oklahoma State Department of Health, Oklahoma Department of Labor, Central Services or other Agency.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 7 UCO Standard Agreement for Architectural Services 8. CONSTRUCTION PHASE - DUTIES, OBLIGATIONS AND RESPONSIBILITIES. The Construction Phase will commence with award of the Construction Agreement and will terminate at the end of the one-year warranty period on the PROJECT following inspection of Contractor corrected warranty items as set forth herein below. During the Construction Phase the duties, obligations and responsibilities of ARCHITECT shall include, but not be limited to, the following:
A. ARCHITECT shall carefully review and be familiar with the Agreement for Construction between OWNER and Contractor. ARCHITECT shall receive and review a proposed copy of said Agreement for Construction and submit any comments on such to OWNER in writing prior to its execution;
B. ARCHITECT shall represent OWNER during construction. Instructions and other appropriate communications from OWNER to the Contractor shall be communicated through ARCHITECT unless OWNER directs otherwise. ARCHITECT shall act on behalf of OWNER only to the extent provided in this Agreement;
C. Upon receipt ARCHITECT shall carefully review and examine the Contractor's Schedule of Values, together with any supporting documentation or data, which OWNER or ARCHITECT may require from the Contractor. The purpose of such review and examination will be to protect OWNER from an unbalanced Schedule of Values, which allocates greater value to certain elements of the Work than is indicated by such supporting documentation or data, or that is reasonable under the circumstances. If the Schedule of Values is not found to be appropriate, or if the supporting documentation or data is deemed to be inadequate, and unless OWNER directs ARCHITECT to the contrary in writing, the Schedule of Values shall be returned to the Contractor for revision or supporting documentation or data. After making such examination, if the Schedule of Values is found to be appropriate as submitted, or if necessary, as revised, ARCHITECT shall sign the Schedule of Values thereby indicating its informed belief that the Schedule of Values constitutes a reasonable, balanced, basis for payment of the contract price to the Contractor. ARCHITECT shall not sign such Schedule of Values in the absence of such belief unless directed to do so in writing by OWNER; any such directive shall absolve ARCHITECT of any further responsibility for a balanced Schedule of Values under this subparagraph;
D. ARCHITECT shall determine amounts due to the Contractor under the Agreement for Construction predicated upon inspections of the Work, evaluations of the Contractor's rate of progress in light of the remaining contract time and upon evaluation of the Contractor's Applications for Payment, and shall issue Certificates for Payment to OWNER in such amounts. The issuance of a Certificate for Payment shall constitute a representation by ARCHITECT to OWNER that ARCHITECT has made an inspection of the Work, and that in ARCHITECT’s professional opinion the Work has progressed to the level indicated, that the quality of the Work meets or exceeds the requirements of the Agreement for Construction, and that, to the best of the knowledge, information and informed belief of ARCHITECT, the Contractor is entitled to payment of the amount approved;
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 8 UCO Standard Agreement for Architectural Services E. ARCHITECT shall record the date of receipt from Contractor of each Application for Payment. Within seven (7) calendar days of receipt of Contractor’s Application for Payment, ARCHITECT shall issue a Certificate for Payment to OWNER, or shall provide written communication to Contractor, with copy to OWNER, detailing and giving the reason for any modifications, reduction or rejection of any Application for Payment. ARCHITECT shall reimburse OWNER for any and all costs, charges, fees or interest payments charged by Contractor for any delays associated with late/delayed progress payments that are attributable to ARCHITECT’s delay in certifying Contractor’s Applications for Payment, including but not limited to, penalties, damages, bonuses, rewards, interest, and fees. Further, ARCHITECT shall compensate OWNER for any and all damages, charges, costs or fees associated with or resulting from Contractor’s extension of its schedule for completion of the contracted work that is attributable to ARCHITECT’s delay in certifying Contractor’s Applications for Payment;
F. ARCHITECT shall be the initial interpreter of the requirements of the drawings and specifications and the judge of the performance there under by the Contractor. ARCHITECT shall render written or graphic interpretations necessary for the proper execution or progress of the Work with reasonable promptness on request of the Contractor or OWNER;
G. Unless otherwise directed by OWNER, ARCHITECT shall determine all matters relating to aesthetic effect, and such determinations shall conform to the intent of the Construction Documents and Agreement for Construction;
H. ARCHITECT shall reject any Work that does not conform to the Construction Documents and Agreement for Construction unless directed by OWNER, in writing, not to do so. Whenever ARCHITECT considers it necessary or advisable in order to protect the interest of OWNER, ARCHITECT shall have the authority to require special inspection or testing of the Work in accordance with the provisions of the Agreement for Construction whether or not such Work is fabricated, installed or completed; provided, however, that no such inspection or testing shall occur without the OWNER’s written consent if the reasonably estimated cost of any such inspection or test exceeds $2,000;
I. ARCHITECT shall review, study and approve, or take other necessary or appropriate action upon Contractor’s Submittals such as Contractor's Shop Drawings, Product Data, Samples, and other Submittals. The review, study and approval shall be for the purpose of determining conformance with the design concept, the Construction Documents and the Agreement for Construction. Approval by ARCHITECT of the Contractor’s Submittals shall constitute ARCHITECT’s representation to OWNER that such Submittal is in conformance with the design concept and Construction Documents. Such action shall be taken with reasonable promptness so as to cause no delay to the Contractor or the PROJECT;
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 9 UCO Standard Agreement for Architectural Services J. ARCHITECT shall review and advise OWNER concerning proposals and requests for Change Orders from the Contractor. ARCHITECT shall prepare Change Orders for OWNER's approval and execution in accordance with the Agreement for Construction. Under no circumstances shall ARCHITECT authorize the Contractor to proceed with any change or deviation from the Construction Documents and Agreement for Construction without prior written approval by OWNER;
K. ARCHITECT, based upon an inspection of the PROJECT, shall determine the status of completion and shall prepare and submit to OWNER and Contractor a listing of incomplete items of work (punch list). ARCHITECT shall certify in writing to OWNER the date of Substantial Completion of the PROJECT and the date of Final Completion of the PROJECT. The warranty period for the PROJECT shall be 12 months from the Final Completion Date. Upon Contractor’s compliance with the terms of the Agreement for Construction, ARCHITECT shall approve a final Certificate for Payment which final payment shall also be subject to OWNER’s written approval. ARCHITECT shall also receive, compile, and forward to OWNER any and all written warranties and related documents required by the Construction Documents and Agreement for Construction;
L. ARCHITECT shall receive, review, prepare and transmit to OWNER, from material collected by and through the Contractor and the Subcontractors, neatly bound folios containing the manufacturers’ instructions, arrangement drawings, and detailed parts identification on all items of operable equipment included in the Work. The required folio shall be divided into volumes covering the various components of the Work such as electrical, plumbing, heating, ventilating, air conditioning, refrigeration, elevators, building hardware, special equipment, and such other components as OWNER may deem appropriate, such materials shall be complete, clean, readable, properly organized and ready for use or file by OWNER;
M. Prior to the expiration of one (1) year after the date of Substantial Completion of the Work, ARCHITECT shall thoroughly and carefully inspect the Work and shall identify in writing to OWNER and the Contractor any defective, deficient or incomplete Work discovered. ARCHITECT shall further re-inspect such Work as necessary to determine completion by the Contractor of its warranty duties, obligations, and responsibilities to OWNER;
N. ARCHITECT shall testify in any judicial proceeding when requested in writing by OWNER, where proper performance of ARCHITECT’s services, interpretation of the Construction Documents or conformity of construction to the Construction Documents are material issues, and ARCHITECT shall make available to OWNER any personnel employed by ARCHITECT for the purpose of reviewing, studying, analyzing or investigating any claims, contentions, allegations, or legal actions relating to, or arising out of, the design of the PROJECT;
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 10 UCO Standard Agreement for Architectural Services O. ARCHITECT shall prepare record drawings from information furnished by the Contractor and shall certify to OWNER that they are adequate to show all significant changes in the Work made during construction; additionally the ARCHITECT shall furnish necessary copies of Contract Documents for approval by the Authority Having Jurisdiction. [The term “Authority Having Jurisdiction” shall have the meaning the term normally has within the architectural, code-compliance and Environmental Health and Safety profession and as it is normally used in industry practice.] Document sets shall include, but not be limited to the following: (1) One approved set shall be at the construction site during all stages of construction; (2) One approved set shall be provided to OWNER for permanent records; and (3) One approved set shall be maintained by ARCHITECT and shall be provided to OWNER at completion of work. This set shall be modified to indicate any and all authorized changes made by the Authority Having Jurisdiction during the work;
P. ARCHITECT shall, during any phase of the PROJECT, without additional compensation, promptly correct any errors, omissions, deficiencies, or conflicts in its work product; and
Q. Other duties of ARCHITECT during construction include, but are not limited to:
(1) Immediately following approval of all materials requiring color or finish selection, ARCHITECT shall submit to OWNER, in a format acceptable to OWNER, schedules and samples of all proposed color and material selections for approval by OWNER prior to release of color selections to any Contractor or Subcontractor. Copies of approved color and material schedules shall be provided to OWNER and to the Contractor.
(2) ARCHITECT shall prepare and furnish such large scale and full size detailed drawings for architectural, structural, plumbing, heating, electrical and all other works as are necessary for the construction of the PROJECT, and shall provide as many copies thereof as may be needed or required to execute the Work.
(3) No later than ninety (90) days after issuing the final Certificate of Payment ARCHITECT shall furnish to OWNER one (1) set of reproducible record drawings of the PROJECT work corrected to show all known or Contractor recorded changes that have taken place during the construction period among the several elements of the work, including architectural, structural, electrical, and mechanical. ARCHITECT shall also furnish two (2) sets of blue-line prints from the corrected record drawings for OWNER’s use. The reproducible record drawings herein called for are to be prints on .004 inch polyester film or similar copies of ARCHITECT’s original tracing corrected as required. ARCHITECT shall also furnish drawing files on CD’s, in AutoCad Release 2004 format or equivalent as approved by OWNER. In addition to the submittals described in
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 11 UCO Standard Agreement for Architectural Services the Program of Services, ARCHITECT shall furnish all narrative information on CD’s, in Word 2000 format or equivalent as approved by OWNER.
R. Any language in this Agreement notwithstanding, OWNER shall be entitled to communicate with any contractors or to inspect on its own, or through third parties, as it deems necessary for the success of this PROJECT.
9. ADDITIONAL SERVICES OF ARCHITECT. The following Additional Services, the performance of which, due to unusual circumstances cause ARCHITECT additional expenses above and beyond those expenses incurred in connection with Basic Services, shall be paid for by OWNER. Additional Services include, but are not limited to, the following and in such instance shall begin only after written approval is received from OWNER:
A. Revising drawings, specifications or other documents occurring after the completion and written approval of the Construction Documents when such revisions are based upon written directions by OWNER given after the approval by OWNER of the Construction Documents or when required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents and not reasonably anticipated and due to other causes not within the control or responsibility of ARCHITECT.
B. Providing programming, financial feasibility or other special studies or reports to OWNER not identified as being part of the scope of Basic Service;
C. Providing design services relating to damaged Work provided that such services are required by causes not the responsibility of ARCHITECT, either in whole or in part;
D. Providing interior design or similar services required in connection with the selection, procurement, or installation of furniture or moveable equipment;
E. Providing services resulting solely from the default of the Contractor other than PROJECT delays resulting there from;
F. Providing consultation concerning replacement of any work damaged by fire or other cause during construction and furnishing services in connection with the replacement of such damaged work, but this paragraph shall not apply to services in assisting in the determination as to whether such fire or other damage may have resulted from an aspect of the design, Contract Documents or construction;
G. Arranging for the work to proceed should the Contractor default due to delinquency or insolvency;
H. Providing services as an expert witness in connection with any public hearing, arbitration/mediation proceeding or other proceedings of a court of record, for things not related to OWNER’s PROJECT;
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 12 UCO Standard Agreement for Architectural Services I. ARCHITECT, if requested in writing by OWNER, shall cooperate with and assist OWNER in the preparation of Federal grant applications, including but not limited to, the preparation and furnishing of such drawings, specifications, cost estimates, and time schedules as the granting agency may require for grants that may be applied for which relate to the PROJECT;
J. After all design considerations necessary for inclusion on this Phase have been established and approved in writing by OWNER, ARCHITECT, if or when directed in writing by OWNER, after Owners approval of costs, shall have prepared by a professional delineator two-color renderings of the PROJECT to be retained by OWNER. The size of each rendering shall be established by OWNER and must be easily readable from a distance of twenty feet, matted, framed, covered with non-glare glass, and prepared for wall hanging. Renderings also must be suitable for color reproduction for promotional purposes;
K. Providing any other services not otherwise included in this AGREEMENT and not customarily furnished in accordance with generally accepted architectural practice; and
L. Fees paid to Consultant(s) for specialized services, including but not limited to: geo- technical, acoustical and radio-TV broadcast engineering, specialized signage and graphics, landscaping, specialized cost estimating, food service design, laboratory design and bio-containment design and other specialized Consultant(s) shall not be included within the Basic Services of ARCHITECT. Such services by ARCHITECT relating to PROJECT work that requires specialized services shall be additional services and the decision to employ such Consultant(s) or professionals and the fees paid to them shall be subject to OWNER’s prior written approval. Providers of the services referred to in this subparagraph shall be referred to, or defined, as “Consultant(s)”.
Any and all requests for additional services from OWNER shall be made in writing and ARCHITECT shall not comply with requests from any source for Additional Services unless and until it has received written approval from OWNER. Any requests from ARCHITECT that services be treated as Additional Services, similar to or such as identified within this paragraph in items A through L above, and that for providing such ARCHITECT should receive additional fees, therefore shall be in writing and subject to OWNER’s written approval prior to any such services being ordered or applied to PROJECT.
10. REIMBURSABLE EXPENSES OF ARCHITECT. In addition to the fees set forth hereinabove, ARCHITECT shall be entitled to receive payment for Reimbursable Expenses incurred by ARCHITECT and ARCHITECT's engineers and consultants in the interest of the PROJECT.
A. Certain Reimbursable Expenses are to be paid at one and one-tenth (1.1) times the actual amounts expended on behalf of the PROJECT; said expenses shall be verified by paid receipts, canceled checks or such other written forms of proof of payment and are limited to the following specific items:
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 13 UCO Standard Agreement for Architectural Services (1) Provided they are authorized in writing in advance by OWNER, the reasonable and necessary transportation and living expenses of ARCHITECT’s employees incurred in traveling outside the state of Oklahoma; and
(2) the costs and expenses of reproduction, postage and handling/transportation of drawings and other PROJECT materials or documents furnished for OWNERS use, review and approval in excess of the number of sets required elsewhere in this Agreement.
B. Certain Reimbursable Expenses are to be paid for the actual amounts expended on behalf of the PROJECT; said expenses shall be verified by paid receipts, canceled checks or such other written forms of proof of payment and are limited to the following specific items, provided each item is authorized in writing in advance by OWNER, as follows:
(1) The Fees of special Consultant(s) other than those Consultant(s) required to perform the duties, obligations, and responsibilities included in Basic Services as set forth in Sub-paragraph 9. L. of this Agreement;
(2) Cost of the geotechnical evaluation if required in writing by OWNER under Paragraph 6. A. hereof;
(3) Fees properly paid for securing approval of authorities having jurisdiction over the PROJECT;
(4) Expenses of FedEx, UPS or other similar costs reasonably required for shipping of non-routine or expedited items;
(5) Costs of construction and transportation of models for OWNER’s use; and,
(6) The costs of preparation and transportation of color renderings for OWNER’s use.
11. SERVICE SCHEDULE
ARCHITECT shall perform the Basic Services and Additional Services as expeditiously as is consistent with professional skill and care and the orderly progress of the work. ARCHITECT shall submit for OWNER’s approval a schedule for the performance of ARCHITECT’s services that shall include reasonable allowances for periods of time required for OWNER’s review. It is OWNER’s intent that all design work shall be completed and the Project shall be ready for bid no later than November 1, 2010 with a desired substantial completion date to be established. This schedule, based upon OWNER’s desired bid date, when approved by OWNER, shall not, except for reasonable cause, be exceeded by ARCHITECT. ARCHITECT shall not be liable for damages caused by delays in the Approved as to Form, 051906 UCO Office of Legal Counsel JBM 14 UCO Standard Agreement for Architectural Services performance of services arising from events beyond its reasonable control. Both parties agree that time and compliance with schedules is of the essence and an important factor in the successful completion of the PROJECT.
12. PERSONNEL
ARCHITECT shall assign only qualified personnel to perform any service concerning the PROJECT. At the time of execution of this Agreement, the parties anticipate that the following named individuals will perform those functions indicated:
NAME PROJECT FUNCTION
______
(Additional names and functions, if any, are set forth on Exhibit A attached hereto.)
So long as the individuals named above remain actively employed or retained by ARCHITECT, they shall perform the functions indicated next to their names. Changes in the identity of those performing the above functions may be made with the written consent of OWNER, which shall not be unreasonably withheld.
13. PROJECT BUDGET, MAXIMUM CONTRACT PRICE, EXCESSIVE CONSTRUCTION COSTS AND ADDITIONAL OWNERS OPTIONS
A. Project Budget: OWNER has allocated to the PROJECT the sum of ______Dollars ($______) which shall be the total cost of the PROJECT. This amount shall include costs of: (1) General Construction and/or Renovation, $______including contingency factor on construction (2) Fixed Equipment including -- ______Laboratory Casework and Fumehoods (3) Extensions of Utilities ______(4) Site Clearance & Demolition ______(5) Site Development ______
Subtotal [(1) – (5), B. Maximum Contract Price ]* ______
(6) Landscape Materials and Accessories ______(7) Moveable Equipment and Furnishings ______(8) Telecommunications Infrastructure ______(9) Sound and/or Security Systems ______(10) Telephones, Telecommunication, Computers and other Electronic Equipment ______Approved as to Form, 051906 UCO Office of Legal Counsel JBM 15 UCO Standard Agreement for Architectural Services Subtotal [(1) – (10), B. Maximum Contract Price ]* ______
(11) Fees of all types payable to State, City and other ______governmental agencies (12) Fees for Basic Services (Estimated) ______(13) Estimated Fees for Additional Services ______(14) Estimated Reimbursable Expenses ______(15) Project Contingency ______(16) Other Costs: Financing, internal administration, legal and accounting, etc. ______
Total Budget Cost of the PROJECT 1 $______
* Use only the subtotal required for the contract
[Note all costs are estimated until actual bids and change orders approved by OWNER are considered and put into a final actual cost Budget.] 1ACM testing and removal shall be treated separately and not included in any fee % paid.
B. Maximum Contract Price: Except as specifically modified in writing by OWNER, the Maximum Contract Price for the PROJECT is Subtotal Items 1 – 5, of _$______, as noted above. It is contemplated that Items 6 through 15 will be furnished or paid for by OWNER separately, not as a part of the Construction Agreement or construction costs. The figures above are budget figures based on best estimates for the PROJECT. These figures are for the purpose of setting the initial ARCHITECT’s fee projection. The figures, for ARCHITECT’s fee to be actually paid, shall be these figures adjusted based on the amount contract awards by OWNER plus or minus the amount of all OWNER approved change orders. SELECT ONE -or- Depending upon project(s) and contract needs
B. Maximum Contract Price: Except as specifically modified in writing by OWNER, the Maximum Contract Price for the PROJECT is Subtotal Items 1 – 10, of _$______, as noted above. It is contemplated that Items 11 through 15 will be furnished or paid for by OWNER separately, not as a part of the Construction Agreement or construction costs. The figures above are budget figures based on best estimates for the PROJECT. These figures are for the purpose of setting the initial ARCHITECT’s fee projection. The figures, for ARCHITECT’s fee to be actually paid, shall be these figures adjusted based on the amount of contract awards by OWNER plus or minus the amount of all OWNER approved change orders.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 16 UCO Standard Agreement for Architectural Services C. Excessive Construction Costs: In the event the final estimate of the Probable Construction Costs as provided hereinabove exceeds the Maximum Contract Price, or in the event the lowest bona fide bid or negotiated proposal from a qualified contractor exceeds the Maximum Contract Price, OWNER may require ARCHITECT and it’s Sub-consultants or Consultants, without additional cost to OWNER, to consult with OWNER and to revise and modify the Construction Documents as required to bring the lowest bona fide bid, including alternates, or negotiated proposal, to an aggregate price at or below the Maximum Contract Price. If OWNER chooses to reject all bids and proceed with the PROJECT within funds identified as the aggregate Maximum Contract Price, above, ARCHITECT and its Sub-consultants, without additional compensation, shall make such eliminations, changes and corrections in the accepted Plans and Specifications as may be necessary to reduce the Construction Cost to said maximum amount. All changes, eliminations and corrections in the accepted Plans and Specifications made by ARCHITECT to reduce the cost of the PROJECT shall be subject to the specific prior written approval of OWNER, and shall not be considered as additional services.
D. Additional OWNER’s Options: If the Maximum Contract Price for the PROJECT is exceeded by the lowest bona fide or negotiated bid proposal, OWNER shall, in its sole discretion, have the option to either:
(1) give written approval of an increase in the budget for the Cost of the Work and the Maximum Contract Price; or (2) terminate the PROJECT.
14. DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF OWNER
OWNER shall have and perform the following duties, obligations and responsibilities to ARCHITECT:
A. To provide ARCHITECT with adequate information regarding the OWNER's requirements for the PROJECT, including any desired or required design or construction schedule, or both, and any budgetary requirements;
B. To review any documents submitted by ARCHITECT requiring OWNER's decision and shall render any required decisions pertaining thereto;
C. To furnish a legal description and any necessary survey of the site, including all elements as may be reasonably required;
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 17 UCO Standard Agreement for Architectural Services D. If OWNER’s authorized representative designated in Sub-paragraph H of this Paragraph observes, or otherwise becomes aware of, any defect in the PROJECT, OWNER’s representative shall give written notice thereof to ARCHITECT. OWNER shall not be obligated to direct or supervise the performance of any services required of the ARCHITECT herein and the failure of the OWNER to direct or supervise shall not constitute a waiver of any claim which the OWNER may at any time have against the ARCHITECT, nor shall the OWNER have any duty of observation or inspection during the construction of the PROJECT, nor be liable for any failure to inspect;
E. To provide ARCHITECT access to the site and to the Work as necessary for ARCHITECT to perform its duties and obligations under this Agreement;
F. To perform those duties set forth in this Paragraph 14 as expeditiously as may be reasonably necessary for the orderly progress of ARCHITECT's services and of the Work;
G. To review any documents prepared by ARCHITECT or its Sub-consultants or Consultants solely for the purpose of determining whether such documents are generally consistent with the OWNER's construction program and requirements. No review of such documents shall relieve the ARCHITECT of its responsibility for the accuracy, adequacy, fitness, suitability or coordination of its work product;
H. OWNER shall designate, in writing, representative(s) authorized to act in its behalf with respect to the PROJECT. Initially the authorized representative of OWNER for this PROJECT shall be the UCO Director of Architectural and Engineering Services; however, OWNER may designate other or additional representatives by written notice or notice sent to ARCHITECT.
I. In addition to the foregoing, OWNER shall also:
(1) Furnish to ARCHITECT written information upon which ARCHITECT shall be entitled to rely as to its accuracy subject to any limitations, qualifications or requirements of further investigation stated by OWNER at the time any such information is furnished; provided this subsection shall not be interpreted to relieve ARCHITECT of its responsibility to inform and advise OWNER when, in the exercise of its professional judgment, ARCHITECT knows or should know that OWNER’s information is inaccurate or incomplete.
15. APPROVAL OF PLANS
A. During the several phases of plan development as set forth above and described as services of ARCHITECT in Paragraphs 3 through 8 hereof, ARCHITECT shall obtain
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 18 UCO Standard Agreement for Architectural Services written approval of each phase from the UCO Director, Architectural and Engineering Services, and where necessary, from governmental agencies having jurisdiction over the design of the PROJECT before proceeding with development of the succeeding phase.
B. No final decision, with respect to a change in the original or any revised Plans or Specifications shall be made without the prior written approval of the OWNER whether before or after construction of the PROJECT has commenced.
16. FEES AND PAYMENTS TO ARCHITECT.
A. For ARCHITECT’s assumption and performance of the services, duties, obligations and responsibilities set forth in this Agreement, ARCHITECT shall be entitled to fees and expenses and shall be paid as follows:
1. Prior to the award of a Construction Agreement the fees for all the elements of Basic Services shall be calculated and paid based on estimated construction cost used to define the initial Maximum Contract Price of $______(amount on 13.B.).
2. ARCHITECT shall be paid as its total fee for Basic Services hereunder an amount equal to ______% of ______the total Construction Cost of the Project, as hereinafter defined, allocated on the basis of the following percentages for each of the respective phases previously described herein:
a. Schematic Design Phase, Paragraph 4 above, - (15%):
b. Design Development Phase, Paragraph 5 above - (20%):
c. Construction Documents Phase, Paragraph 6 above - (40%):
d. Award of Construction Agreement Phase, Paragraph 7 above - (5%):
e. Construction Phase, Paragraph 8 above - (20%):
The total Cost of Construction shall be equal to the amount of the bid(s) (bids in the case of construction in two or more phases for the PROJECT and other line items from ¶ 13. B. above which are included) accepted and awarded by OWNER plus or minus the amount of all OWNER approved Change Orders.
3. With respect to additional services meeting the requirements set forth in Paragraph 9 hereof, OWNER shall pay ARCHITECT on a monthly basis based upon the hourly rates set forth in Exhibit A attached.
B. ARCHITECT shall also be reimbursed on a monthly basis for proper Reimbursable Expenses pursuant to the provisions of Paragraph 10 hereof.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 19 UCO Standard Agreement for Architectural Services C. As a condition precedent to any payment due under this paragraph, ARCHITECT shall submit monthly, unless otherwise agreed in writing by OWNER, an invoice to OWNER requesting payment for services properly rendered and reimbursement for Reimbursable Expenses due hereunder. ARCHITECT's invoice shall describe with reasonable particularity the services rendered, which in the case of fees for Basic Services may consist of a reasonable estimate of the percentage of each Phase having been performed, the dates thereof or period covered thereby, and to the extent that invoices are for Additional Services a detailed report showing the persons rendering such services, their respective hourly rates and time expended. ARCHITECT's invoices, for which reimbursement is sought, shall be accompanied by such documentation as OWNER may reasonably require for data in support of the Reimbursable Expenses. Each invoice (or cover letter thereto) shall bear the signature of an authorized representative of ARCHITECT, which signature shall constitute ARCHITECT's representation to OWNER that the services indicated in the invoice have progressed to the level indicated, have been properly and timely performed as required herein, that the Reimbursable Expenses included in the invoice have been reasonably incurred, that all obligations of ARCHITECT relating to prior invoices have been paid in full, and that, to the best of ARCHITECT's knowledge and informed belief, the amount requested is currently due and owing, there being no reason known to the ARCHITECT that payment of any portion thereof should be withheld.
D. In the event that OWNER becomes credibly informed that any representations of the ARCHITECT as set forth in this Agreement, are wholly or partially inaccurate, or if ARCHITECT has breached this Agreement in any manner which has caused damage or expense to OWNER, OWNER may withhold payment of sums then or in the future otherwise due to the ARCHITECT until all inaccuracies and breaches and the causes thereof are corrected to OWNER's reasonable satisfaction; provided, nothing in this Subparagraph D shall be construed to limit any statutory or common law remedy otherwise available to OWNER for any inaccurate representation or the breach of any covenant, warranty, term or provision hereunder.
E. Submission of the ARCHITECT's invoice for final payment and reimbursement shall further constitute the ARCHITECT's representation to the OWNER that, upon receipt of the amount invoiced, all obligations of the ARCHITECT to others, including its Sub- consultants and consultants, incurred in connection with the PROJECT, to the level indicated, have been or will be paid in full.
F. All payments to ARCHITECT shall be made within thirty (30) days after submission of a monthly invoice by ARCHITECT and approved by OWNER for payment as set forth in this Agreement; provided, however that final payment on ARCHITECT’s fee, except for ten thousand dollars ($10,000.00) of the fee which will be retained until the end of the one-year warranty period specified in subparagraph 8. K. of Paragraph 8 hereof and,
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 20 UCO Standard Agreement for Architectural Services shall be made after final payment to the Contractor following acceptance of the PROJECT by OWNER and after ARCHITECT has provided the reproducible record working drawings called for in subparagraph 8. Q. (3) hereof. It shall be the responsibility of ARCHITECT within ARCHITECT’s Basic Services to consult with OWNER and the Contractor from time to time during the one-year warranty period concerning those items of construction deficiency, which appear following occupancy and commencement of general operation of the PROJECT.
G. If any work designed or specified by ARCHITECT is abandoned or suspended in whole or in part by OWNER, through no fault of ARCHITECT, except for circumstances in which an abandonment or suspension results from bids in excess of the Maximum Contract Price which shall be dealt with in accordance with paragraph 13 hereof, ARCHITECT shall be paid for the services rendered prior to the receipt of written notice from OWNER to abandon or suspend that work. In determining the basis of payment for services rendered under such circumstances the percentages of fees allocated to the respective Phases as above set forth in this paragraph shall be used as the principal criterion, as follows:
At the completion of the:
Schematic Design Phase 15.00% Design Development Phase 35.00% Construction Documents Phase 75.00% Award of Construction Agreement Phase 80.00% Construction Phase 100.00%
In the event that the architectural work has not reached completion of one of the several phases, the fee in such circumstance shall be based on a percentage of the services performed to the time of any abandonment or suspension. Should the PROJECT be stopped and then reactivated, under circumstances in which suspension results from bids in excess of the Maximum Contract Price fees shall be dealt with in accordance with Paragraph 13. Prior to actual commencement of the construction, the Maximum Contract Price mentioned in Paragraph 13 shall be utilized for the payments contemplated in this paragraph.
17. PROJECT RECORDS. ARCHITECT’s records shall be maintained at ARCHITECT’s principal place of business and available to OWNER and its authorized representatives or agents subject to the following:
A. Records to be maintained by the ARCHITECT shall include the following:
(1) Normal accounting and business records covering all costs and expenses in connection with Basic Services, additional Services and Reimbursable Expenses relating to the PROJECT kept in accordance with generally accepted accounting principals.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 21 UCO Standard Agreement for Architectural Services (2) All drawings, plans, specifications, submittals, correspondence, minutes, memoranda, recordings, videos, and other data or information in electronic or written formats relating to the PROJECT, its design and construction.
(3) All records relating to the individuals who have expended time in the employ of ARCHITECT on the PROJECT including the dates and times spent plus the records of all Reimbursable Expenses incurred by ARCHITECT relating to the PROJECT.
B. OWNER shall have a right of inspection of all records described in subparagraph A of this paragraph and the right to make copies of all such records during business hours upon reasonable notice to ARCHITECT.
C. ARCHITECT shall maintain and protect these records for no less than five (5) years after the date of final completion of the PROJECT, or for any longer period of time as may be required by law or good Architectural practice.
D. ARCHITECT shall in its agreements with Sub-consultants and Consultants require all Sub-consultants and Consultants to maintain records relative to the PROJECT in accordance with the provisions of this paragraph.
18. OWNERSHIP OF DOCUMENTS
A. The Contract Documents, which include but are not limited to, the documents and reports relating to all Phases and aspects of the PROJECT, the construction drawings, plans and specifications, PROJECT Records described in subparagraph 17. A. (2). hereof, and any and all other documents or things prepared by ARCHITECT for the PROJECT, shall become and be the sole property of OWNER. OWNER, without reservation or time limitation, may use, reproduce, modify, distribute and display all such PROJECT documents produced by ARCHITECT or its consultants for purposes relating to the PROJECT such as renovation, repair, modification or addition thereto. OWNER’s right of ownership of such documents shall not be construed as a representation that they are suitable for use on any other PROJECT. ARCHITECT shall be permitted to retain copies thereof for its records and for its future professional endeavors. In the event the services of ARCHITECT are, for any reason, terminated prior to completion of the PROJECT, all documentation on the PROJECT in any form, including, but not limited to: drawings and sketches, project notes, plans, specifications, and computations, are to be delivered to OWNER in their original form and in such other form as reasonably may be required by the OWNER. OWNER shall not be required to pay any additional compensation to use said documents to complete the PROJECT. OWNER may, at OWNER’s expense, subsequently reproduce PROJECT- related documents or create a derivative work based upon PROJECT-related documents created by ARCHITECT, so long as such work is on the same PROJECT or facility; ARCHITECT may reproduce at its cost for its records all or any part of this material.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 22 UCO Standard Agreement for Architectural Services B. ARCHITECT shall not be liable for errors or omissions in documents or designs that are incomplete due to termination of this Agreement. ARCHITECT shall not be liable to OWNER in any manner whatsoever in relation to their reuse.
19. INDEMNITY
A. To the fullest extent permitted by law, ARCHITECT shall indemnify, defend and hold harmless OWNER, its current and former regents, agents, representatives and employees from and against any and all cost, damage, expense or liability whatsoever with respect to any claims, demands, suits, penalties, damages, losses, costs, liabilities, fees and expenses, including without limitation attorneys' fees and fees and expenses of experts for, among other things, personal injury, bodily injury, death, economic loss, discrimination, harassment, property damage, and product liability arising out of and/or resulting, directly or indirectly, from any breach of this Agreement or any negligent or willful acts or omissions of ARCHITECT, any Sub-consultant, Consultant(s) or any subcontractor to ARCHITECT, or anyone directly or indirectly employed by or agents or consultants to ARCHITECT, any Sub-consultant, Consultant(s) or any subcontractor to ARCHITECT or anyone for whose acts they or any of them may be liable, in the performance of their work on the PROJECT. In the event any party indemnified hereunder is alleged to be liable for covered acts or omissions under this Paragraph, ARCHITECT shall defend the indemnitee(s) through counsel chosen by ARCHITECT with the advice and approval of any such indemnitee, such approval not to be unreasonably withheld. For any reason, ARCHITECT’s obligations under this Paragraph shall survive the expiration or termination of this Agreement by five (5) years.
B. OWNER requires that ARCHITECT and any Sub-consultant, Consultant(s) or subcontractors performing work in connection with the Construction Agreement Documents produced under this Agreement shall hold harmless, indemnify and defend OWNER, its officers, agents, employees and others as described in sub-paragraph A hereof to the same extent and effect as described in said sub-paragraph A; and to that end ARCHITECT shall require its Sub-consultants and subcontractors to include provisions to that effect in their Agreements with ARCHITECT and expressly provide therein that OWNER and others so indemnified are, and are intended to be, third party beneficiaries with respect to such provision and entitled to enforce it.
20. INSURANCE
The following coverages are required by UCO for this PROJECT. These coverages are based on the value of the Project. The coverages provided by the ARCHITECT’S current insurance, shall be considered part of Basic Services provided for the PROJECT. However, if the OWNER determines that ARCHITECT’S coverages are not sufficient, ARCHITECT and OWNER shall negotiate coverages that will be acceptable to OWNER.
A. Professional Errors and Omissions Insurance -- ARCHITECT shall obtain, pay the premiums on and maintain continuously from the execution of this Agreement through one year after Final Completion (warranty period per ¶ 8.K. above), Professional Errors and Omissions Insurance with policy limits of not less than Five Million dollars ($5,000,000.00) per claim and Five Million dollars ($5,000,000.00) in the aggregate
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 23 UCO Standard Agreement for Architectural Services with a deductible of not more than Seventy-Five Thousand dollars ($75,000.00). In addition, all other Sub-consultants and consultants shall obtain and maintain professional errors and omissions coverage with respect to design or other services rendered by them in amounts commensurate with the responsibility of such Sub- consultant or consultant in amounts not less than One Million dollars ($1,000,000.00 ) per claim and aggregate coverage and ARCHITECT’s agreements with such Sub-consultants shall specifically contain this requirement; provided, however, that OWNER, may in its discretion, reduce the amounts of coverages hereunder with respect to Sub-consultants or Consultants which have very limited roles in the PROJECT. All errors and omissions coverage obtained and provided pursuant to this Agreement shall be on a claims-made basis unless OWNER approves in writing any other basis.
B. Notice of Current Professional Errors and Omissions Insurance Claims --Upon execution of this Agreement, ARCHITECT shall promptly (within ten (10) days) inform the OWNER, in writing, of any and all claims made against ARCHITECT as to which ARCHITECT has notified its Professional Errors and Omissions insurance carrier in the twelve (12) months prior to entering into this Agreement and of any claims made prior to said twelve month period which are still pending or unresolved. Such information shall include without limitation, the amount, general nature and status of said claims.
C. Notice of New Claims Against Insurance -- During the term of this Agreement or any renewals or extensions thereof, ARCHITECT and its Sub-consultants shall notify OWNER in writing, within thirty (30) days after receipt, of any and all claims made against ARCHITECT or any such Sub-consultants with respect to which ARCHITECT or any such Sub-consultants has been sued, or given notice, under any insurance policy (including Workers Compensation & Liability) providing coverage for the OWNERS PROJECT or in which it has been required to notify its Professional Errors and Omissions insurance carrier. Notice to OWNER under this paragraph, shall include, without limitation, the name, business address and telephone number of the claimant, the date the claim was made and the amount, general nature and status of the claim; provided, however, that nothing in this sentence shall require ARCHITECT or any Sub- consultant to furnish OWNER detailed information in violation of any settlement agreement, court order or insurance policy provision.
D. Requirements for Insurance Companies & Minimum Coverages --ARCHITECT shall for the duration of the PROJECT purchase from and maintain in a company or companies lawfully authorized to do business in the State of Oklahoma, and having an A.M. Best rating of “B+” or better, such insurance as will protect ARCHITECT and OWNER from claims that may arise out of or result from ARCHITECT’s operations under this Agreement and for which ARCHITECT may be legally liable, whether such operations by ARCHITECT or by a Sub-consultant, Consultant(s) or anyone directly or indirectly employed or retained by any of them, or by anyone for whose acts any of them may be liable including the following coverages:
Policy Type Minimum Amount Required 1. Worker’s Compensation Statutory 2. Employer Liability $5000,000 per occurrence
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 24 UCO Standard Agreement for Architectural Services 3. General Comprehensive Liability $1,000,000 per occurrence Personal injury $2,000,000 aggregate Bodily injury -- including Sickness, disease or death of any person 4. Property Damage -- Claims for damages $1,000,000 per occurrence involving injury to or destruction of $2,000,000 aggregate tangible property including loss of use resulting therefrom 5. Third-Party Liability -- Claims for damages $1,000,000 per occurrence; for bodily injury, death of a person or $1,000,000 aggregate property damage arising out of ownership, use or maintenance of a motor vehicle or other pieces of equipment owned, rented or leased, and used in conjunction with PROJECT
6. Professional Errors and Omissions See ¶ 20. A. Above
(1) Notice & Certificates: The coverages provided herein shall contain an endorsement providing thirty (30) days notice to OWNER prior to any reduction, modification or cancellation of any such coverage, or upon any material change in coverage. Additionally, at the time of execution of this Agreement, in the case of ARCHITECT, and at the times of execution of any Agreements between ARCHITECT and its Sub- consultants and Consultant(s), their respective insured’s shall furnish certificates evidencing the coverage’s required herein, which certificates shall be updated and furnished to OWNER every six months thereafter and upon any material change in coverage.
(2) Deductible: All insurance provided under this paragraph shall be in standard form for the type of insurance policy involved, have no unusual exclusions or exceptions to coverages and have no deductibles in excess of One Thousand dollars ($1,000.00) per occurrence unless otherwise consented to in writing by OWNER.
21. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Oklahoma, without giving force and effect to its choice of Law Provisions or to which party drafted particular provisions of this Agreement, and the United States of America. Any legal action relating to this Agreement shall be filed in a Court of competent jurisdiction in Oklahoma County, Oklahoma, to which jurisdiction and venue ARCHITECT expressly agrees.
22. SUCCESSORS AND ASSIGNS
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 25 UCO Standard Agreement for Architectural Services ARCHITECT shall not assign its rights hereunder, except its right to payment, nor shall it delegate any of its duties hereunder without the prior written consent of OWNER. ARCHITECT shall notify OWNER in writing of the identity of any assignees and the terms of the assignment. No such assignment shall be valid unless the assignees agree in writing at the time of the assignment that such assignment is subject to all of the terms and conditions of this Agreement and to all of OWNER’S rights and privileges hereunder and under applicable law. Any merger, consolidation or other change in control of ARCHITECT’s firm shall be deemed an assignment. Subject to the provisions of the immediately preceding sentence, OWNER and ARCHITECT, respectively, bind themselves, their successors, assigns and legal representatives to the other party to this Agreement and to the successors, assigns and legal representatives of such other party with respect to all terms of this Agreement.
23. NO THIRD PARTY BENEFICIARIES
Nothing contained herein shall create a contractual relationship with, or any rights in favor of, any third party except to the extent described or contemplated in paragraphs 19 and 20 hereof.
24. TERMINATION
This Agreement may be terminated by either party upon seven (7) days' written notice to the other party upon the occurrence of a Breach of this AGREEMENT as defined in Paragraph 25 hereof, if through no fault of the party initiating the termination. Furthermore, this Agreement may be terminated by OWNER without cause, i.e. not resulting from a Breach, upon seven (7) days' written notice to ARCHITECT. In the event of such a termination without cause, ARCHITECT shall be compensated as provided in sub-paragraph 16.G. of Paragraph 16. hereof for all services performed prior to the termination, together with any Reimbursable Expenses incurred. In such event, ARCHITECT shall promptly submit to OWNER its invoice for final payment and reimbursement which invoice shall comply with the provisions of Paragraph 16 hereof. OWNER shall be entitled to retain all materials produced by ARCHITECT through the date of termination and shall be entitled to use such materials in accordance with Paragraph 18 hereof.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 26 UCO Standard Agreement for Architectural Services 25. DEFAULT, BREACH, CURE
A. Under this Agreement, ‘Default’ shall mean a breach of, or a failure, by either party to perform the material terms of this Agreement. Upon the occurrence of such an event the non-compliant party shall be notified in writing by the other party. The non- compliant party shall be given ten (10) working days after receipt of such notice to cure such non-compliance.
B. Under this Agreement, ‘Breach’ shall mean a breach of, failure to perform, the material terms of this Agreement and failure to cure the same as provided in this paragraph. When a breach shall occur, the non-breaching party shall have the right to consider this Agreement null and void and may demand full and final payment or delivery of all services or payments, as the case may be, which are due up to the date that Breach occurred. The non-breaching party may terminate the Agreement without penalty; or request mediation to determine if reinstatement of the Agreement is feasible.
C. Under this Agreement, both parties are bound by good faith to honor the terms of this Agreement and to do what is necessary to preserve the Agreement to the benefit of each.
26. NOTICES
Notices, invoices, communications and payments shall be submitted to the offices identified below. Contractual notices and communications hereunder shall be deemed to have been made three (3) business days after being deposited in the United States mail if given by registered or certified mail, return receipt requested, postage prepaid and addressed to the party to receive such notice or communication at the address given below, or such other address as may hereafter be designated by notice in writing, or, if actually received by the person notified by regular mail, Federal Express, e- mail or fax on the date of such actual receipt.
OWNER: ARCHITECT: The University of Central Oklahoma ______Director, ______Architectural and Engineering Services ______Campus Box 148 ______100 North University Drive ______Edmond, OK 73034 ______
with copies to: Steve Kreidler Campus Box 173 100 North University Drive Edmond, OK 73034
Either party shall be entitled at any time upon ten (10) days written notice to the other party to change the person or the addresses for notices hereunder.
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 27 UCO Standard Agreement for Architectural Services 27. WAIVER
Any waiver, expressed or implied, by either party of any breach of any term, provision or condition contained herein shall operate as such only in the specific instance and shall not be construed as an assent or waiver of any subsequent breach of any term, provision or condition of this Agreement.
28. FORCE MAJEURE
Neither party to this Agreement shall be liable for any breach of this Agreement or failure to perform its terms, if such breach or failure is a result of “Force Majeure” as defined herein. “Force Majeure” shall be deemed to include only the following: acts of God or of the Public Enemy, Acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, embargoes, and unusually severe weather, but in every case, the failure to perform must be beyond the control and without the fault or negligence of ARCHITECT or OWNER, as the case may be.
29. ENTIRE AGREEMENT
This Agreement represents the entire agreement between OWNER and ARCHITECT and supersedes all prior communications, negotiations, representations, or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both OWNER and ARCHITECT.
30. RELATIONSHIP OF PARTIES
The relationship of the parties in this Agreement shall be that of owner and independent contractor. Nothing in this Agreement shall be construed to make either party the legal representative, partner, joint venturer or agent of the other party, nor shall either party have the right or authority to assume, create or incur any liability or any obligation of any kind, either expressed or implied, in the name of or on behalf of the other party.
31. ATTORNEY’S FEES
In the event that either party to this Agreement commences an action in either law or equity to enforce the terms of this Agreement, the non-prevailing party shall pay to the prevailing party reasonable attorney’s fees as are fixed by a court of competent jurisdiction.
The OWNER and ARCHITECT hereby agree to perform fully the terms and provisions of this Agreement.
IN WITNESS WHEREOF they have set their hand and seal.
OWNER: ARCHITECT: The University of Central Oklahoma (Typed name)
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 28 UCO Standard Agreement for Architectural Services By:______By:______(Signature) (Signature) Steve Kreidler, Executive Vice President ______(Printed Name, Title and Address) (Printed Name, Title and Address) Campus Box 173 100 N. University Drive Edmond, OK 73034
______(Date of Execution) (Date of Execution)
[seal] [corporate seal]
Attest: ______Attest: ______Notary Public (Officer of the Corporation) Commission No. ______Expires ______
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 29 UCO Standard Agreement for Architectural Services NON COLLUSION AFFIDAVIT
STATE OF ) ) ss. COUNTY OF )
______, of lawful age, being first duly sworn, on oath says:
1. (s)he is the duly authorized agent of ______, the ARCHITECT under the Agreement for Architectural Services, which is attached to this statement, for the purpose of certifying the facts pertaining to the giving of things of value to government personnel in order to procure said Agreement;
2. (s)he is fully aware of the facts and circumstances surrounding the making of the Agreement for Architectural Services to which this statement is attached and has been personally and directly involved in the proceedings leading to the procurement of said Agreement; and
3. neither the ARCHITECT nor anyone subject to the ARCHITECT’s direction or control has paid, given or donated or agreed to pay, give or donate to any officer or employee of the State of Oklahoma any money or other thing of value, either directly or indirectly, in procuring the contract to which this statement is attached.
Further Affiant sayeth not.
______Name/Title
Subscribed and sworn to before me this ______day of ______, 20_____.
______Notary Public (or Court Clerk or Judge)
My Commission Expires:
______
Commission Number:
______
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 30 UCO Standard Agreement for Architectural Services EXHIBIT A
TO THE AGREEMENT FOR PROFESSIONAL ARCHITECTURAL SERVICES BETWEEN THE UNIVERSITY OF CENTRAL OKLAHOMA (OWNER) AND ( Insert name ) (ARCHITECT)
ADDITIONAL SERVICES BILLING RATES
INSERT NEW NAMES and RATES
Position Hourly Billing Rate
Approved as to Form, 051906 UCO Office of Legal Counsel JBM 31 UCO Standard Agreement for Architectural Services