AGREEMENT BETWEEN DESIGNING ARCHITECT AND THE DISTRICT BOARD OF TRUSTEES OF PALM BEACH STATE COLLEGE

Transcription

1 AGREEMENT BETWEEN DESIGNING ARCHITECT AND THE DISTRICT BOARD OF TRUSTEES OF PALM BEACH STATE COLLEGE THIS AGREEMENT, is made and entered into this day of, between the DISTRICT BOARD OF TRUSTEES OF PALM BEACH STATE COLLEGE, 4200 Congress Avenue, Lake Worth, Florida 33461, (hereinafter Owner ) and (hereinafter Architect ). For and in consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is herein acknowledged, the Owner and the Architect agree as follows: ARTICLE 1 SERVICES AND RESPONSIBILITIES OF THE ARCHITECT The services required under this Agreement are for, and they relate to, a project identified as (hereinafter the Project ). The Basic Services of the Architect consist of all services described in Paragraphs 1.1 through 1.3 of Article 1 of this Agreement and include, but are not limited to, normal and necessary structural, mechanical and electrical engineering services and any other services enumerated as Basic Services in Article 14 of this Agreement. In furnishing the Basic Services, and in furnishing all other services required by this Agreement, the Architect shall comply with all directives, memoranda and instructions issued by the Owner, and, where appropriate, same shall be incorporated into the Project design. The Architect shall further comply with all requirements of law and all applicable rules and regulations, including but not limited to, the District Board of Trustees policies and the latest version of SREF State Board of Education Regulations. Acceptance and execution of this agreement by the Architect is an acknowledgment that the Architect is familiar with the project, its scope, site conditions, and the Owner s intended outcome. All professional consulting engineers retained by the Architect shall be registered in the State of Florida, and acceptable to the Owner. Said consulting engineers shall be agents of the Architect for the necessary structural, air conditioning, civil, mechanical and electrical portions of the Project. The Architect shall require consulting engineer participation in necessary phases of the Architect s services and shall require consulting engineers to be professionally responsible for engineering services they provide. The Architect shall specifically require the consulting engineers to visit and inspect the work under construction at intervals appropriate to the stage of construction to determine whether the work relating to his professional responsibilities is proceeding in accordance with the Contract Documents. Page 1

2 The Architect shall record minutes and notes from any and all meetings, and conferences related in any manner to the Project, and said minutes and notes shall be distributed to all interested parties in attendance at any said meeting or conference. 1.1 SCHEMATIC DESIGN PHASE The Architect shall review the program furnished by the Owner to ascertain the requirements of the Project and shall review the understanding of such requirements with the Owner The Architect shall provide a preliminary evaluation of the program and the Project budget requirements, each in terms of the other, subject to the limitations set forth in Subparagraph The Architect shall review with the Owner alternative approaches to design and construction of the project Based on the mutually agreed upon program and Project budget requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components as required by the Owner and/or the latest version of SREF State Board of Education Regulations The Architect shall submit to the Owner a Statement of Probable Construction Cost based on current area, volume or other unit costs. Alternately, if a Construction Manager has been hired for the Project, the Architect will review the Statement of Probable Cost as prepared by the Construction Manager As requested, the Architect shall submit samples of materials to Owner for review prior to inclusion in specification documents The Architect shall submit outline specifications for review by the Owner and as required by the latest version of SREF The Architect shall submit a proposed time schedule for both design and construction phases to be reviewed and approved by the Owner The Architect shall provide three (3) sets of plans and outline specifications to the Owner, for the Owner s review and approval. 1.2 DESIGN DEVELOPMENT PHASE Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program or Project budget, the Architect shall prepare, for approval by the Owner, Design Development Documents consisting of drawings and other documents to fix and describe the size and character of the entire Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as are required by the Owner and/or by the latest version of SREF. Page 2

3 1.2.2 Cost. The Architect shall submit to the Owner a further Statement of Probable Construction The Architect shall coordinate with other agencies including but not limited to water, sewer, power, telephone, drainage, fire and police protection and traffic as may be applicable in order to meet the Owners design objective The Architect shall provide three (3) complete sets of Design Development Documents for approval and review by the Owner and to other appropriate agencies according to applicable state and local law. 1.3 CONSTRUCTION DOCUMENTS PHASE Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the Project budget authorized by the Owner, the Architect shall prepare, for approval by the Owner, Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for the construction of the Project. The Architect shall suggest the duration of the construction contract as required by the provisions of the latest version of SREF. In projects employing a Construction Manager, the actual duration of the construction shall be determined by the Construction Manager. The Architect acknowledges and agrees, however, that approval by the Owner or the State Department of Education of the Construction Documents, Schematic Design Development Documents, and/or Design Development Documents in no manner whatsoever relieves the Architect of responsibility for that degree of adequacy, fitness, completeness, suitability, and correctness of architecting design as would be consistent with the care and skill exercised by design professionals practicing under similar circumstances If the Project is to be hard-bid, the Architect shall assist the Owner in the preparation of the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and the Contractor The Architect shall advise the Owner of any adjustments to previous Statements of Probable Construction Cost indicated by changes in requirements or general market conditions. Alternately, if a Construction Manager has been hired for the Project, the Architect will review the Statement of Probable Construction Cost as prepared by the Construction Manager The Architect on the Owner s behalf shall be responsible for filing documents required for the approval of governmental authorities having jurisdiction over the Project as may be applicable The Architect shall submit signed and sealed copies of completed construction documents for the approval of the Owner, and other governmental agencies having jurisdiction over the Project. Submittal to the State Department of Education shall be pursuant to the requirements confirmed in the latest version of SREF, if required. Page 3

4 1.3.6 The Architect shall provide six (6) final sets of full sized construction drawings and specifications for review and approval by the Owner and to other appropriate agencies according to applicable state and local law. 1.4 ENUMERATION OF AGREEMENT This Agreement represents the entire and integrated agreement between the Owner and the Architect 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. This Agreement is also comprised of: Owner s Initial Information document dated [enter date]; n/a Other documents to be incorporated into this agreement are as follows: [List other documents, if any, forming part of this Agreement] n/a n/a Special terms and conditions that form part of this Agreement are as follows: n/a [List special terms and conditions] n/a By executing this Agreement the Architect 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. 1.5 PROJECT TEAM The Owner s Project Manager (respective to the phase of the Project) 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 s services The Agency may be comprised of multiple groups or individuals. The Architect shall be aware that the Agency is not able to bind the Owner and shall communicate and coordinate with the Owner s Project Manager in all instances regarding the Project, Initial Information, Project Program, Project Schedule, Project Budget, transfers of information, scheduling meetings, and any Agency requests The Architect/ shall communicate with the Agency through the Owner s Project Manager unless given permission by the Project Manager to communicate and coordinate directly with the Agency. Page 4

5 1.5.4 The Architect representative shall be as defined in the Initial Information document. The Architect Designated Representative shall be authorized to act on the Architect s behalf with respect to the Project and to bind the Architect and the Architect s consultants. 1.6 GENERAL TERMS AND CONDITIONS The Owner and Architect 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 Licensing Requirements. By signature on this Agreement, the declaration is made that the Architect is professionally qualified, registered, and licensed to practice in the State of Florida. In accordance with Florida law, the Architect shall stamp and sign the Contract Documents (drawings and specifications) accordingly The Architect shall be responsible for the professional quality, technical accuracy, and coordination of all concepts, reports, designs, drawings, specifications, and other services furnished under this Agreement. The Architect shall, without additional compensation, correct or revise any errors, deficiencies, or omissions in concepts, reports, designs, drawings, specifications, estimates, and other services 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 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 s negligent performance of any of the services furnished under this Agreement Rights & Remedies. The rights and remedies of the Owner allowed by law are in addition to any rights and remedies provided in this Agreement Relationship. The relationship of the Architect to the Owner under this Agreement is that of an Independent Contractor. The Architect (and the Architect s consultants) is not an employee of the Owner, is not carrying out the regular business of the Owner, and is not subject to the same employment regulations as applicable to employees of the Owner. Each of the parties will be solely and entirely responsible for their own acts and the acts of their employees. No benefits, special considerations, or employer/employee-type provisions are provided by the Owner to the Architect, the Architect s employees, or the Architect s consultants, or the consultants employees Successors and Assigns. The Owner and the Architect 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. Neither the Owner nor the Architect shall assign or transfer its interest in this Agreement without written consent of the other. Page 5

6 1.7 RECORDS AND DOCUMENTATION: The Architect and the Architect 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 are exempt under Florida Statute The Owner shall have access to all records, documents, correspondence, and files of the Architect, its employees, engineers, and consultants pertaining to the Project. This access shall be continuing and survive Final Acceptance of the Project 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 or as otherwise required by the law of Florida Statute 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, other agencies and entities which regulate the Owner The Architect 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 to solicit or acquire the Project described in this Agreement Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect except as provided in the Dispute Resolution article of this Agreement. 1.8 BIDDING OR NEGOTIATION PHASE When Project is to be hard-bid, the Architect, following the Owner s approval of the Construction Documents and of the latest Statement of Probable Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals, and assist in awarding and preparing contracts for construction as set forth in the bid specifications and instructions to bidders. 1.9 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT The Construction Phase will commence with the award of the Contract for Construction or the actual start of construction and, together with the Architect s obligation to provide Basic Services under this Agreement, will terminate when final payment to the Contractor is due, and all requirements of this section have been completed Unless otherwise provided in this Agreement and incorporated in the Contract Documents, the Architect shall provide administration of the Contract for Construction as set forth below and in the General Conditions, Specifications and Contract Documents. Should any of the provisions set forth herein be in conflict with said General Conditions, Specifications or Contract Documents, the provisions set forth herein shall prevail The Architect shall be a Consultant to the Owner during the construction and shall advise and consult with the Owner as appropriate. Instructions to the Contractor or Construction Manager shall be approved by Owner and forwarded through the Architect to the Contractor. The Architect Page 6

7 shall be obligated, to act in the best interest of and properly advise the Owner to the extent provided herein and in the Contract Documents unless otherwise modified by the written instrument in accordance with Subparagraph At the time this Agreement is executed, the Architect shall designate in writing to the Owner the name of one employee or principal of the Architect who is authorized to act, and who will act, as the Architect s representative with respect to any and all communications by and between the Architect and the Owner. The Architect further agrees to furnish to the Owner, at the Owner s request, true and correct copies of any and all written communications by and between the Architect and the Contractor as well as any and all other documents and things in possession or control of the Architect which in any manner relate to the Project The Architect shall inspect the site at intervals appropriate to the stage of construction to become familiar with the progress and quality of the Work and to determine if the Work is generally proceeding in accordance with the Contract Documents. The Architect shall keep the Owner informed of the progress of the Work, and shall take reasonable steps to protect the Owner against defects and deficiencies in the Work The Architect shall not have control or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Contractor, Construction Manager, or Subcontractors The Architect shall at all times have access to the Work wherever it is in preparation or progress Before issuance of the initial Certificate for Payment, as provided hereinafter, the Architect shall have reviewed and approved for reasonableness the Contractor s or Construction Manager s Schedule of Values. Such approval shall constitute a certification by the Architect that, to the best of its information, knowledge, and belief, he has reviewed and considered the Schedule of Values, has found the Schedule of Values to be in adequate detail to give this certification, that the values allocated by the Contractor or Construction Manager to the various portions of the Work are, or reasonably appear to be, accurate and balanced in relation to each other. The Architect shall determine the amounts owing to the Contractor or Construction Manager based on inspections at the site, on evaluations of the Contractor s or Construction Manager s Applications for Payment in light of the quality, quantity and timeliness of his performance and as measured against the approved Schedule of Values, and on any other relevant facts or circumstances known to the Architect, and shall issue Certifications for Payment in such amounts, as provided in the Contract Documents The issuance of a Certificate for Payment shall constitute a representation by the Architect to the Owner, based upon the criteria set forth in Subparagraph 1.9.7, that to the best of its information, knowledge, and belief, the Work has progressed to the point indicated; that the quality of the Work is in accordance with the Contract Documents (subject to any specific qualifications stated in the Certificate for Payment); and that the Contractor or Construction Manager is entitled to payment in the amounts certified The Architect shall be the interpreter of the performance requirements of the Contract Documents and the judge of the performance thereunder by the Contractor and shall recommend to the Owner corrective action. The Architect shall render written or graphic interpretations necessary FAC-ARCH-SingleProj_ V-03_KF Page 7

8 for the proper execution or progress of the Work with reasonable promptness on written requests of either the Owner or the Contractor, and shall render written decisions, within a reasonable time so as to not delay the work, on all claims, disputes and other matters in question between the Owner and the Contractor relating to the execution, or progress of the Work The Owner s decisions in matters relating to artistic effect shall be final if consistent with the intent of the Contract Documents The Architect shall have authority to reject Work which does not conform to the Contract Documents, and absent clear and compelling reasons or the Owner s written consent not to do so, will reject such nonconforming Work if known to the Architect. The Architect will have the further authority to require special inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work be then fabricated, installed or completed The Architect shall review and approve or take other appropriate action upon the Contractor s submittals such as Shop Drawings, Product Data and Samples, but only for conformance with the design concept of the Work and with the information given in the Contract Documents and not approval of ultimate product or design capabilities. Such action shall be taken with reasonable promptness so as to cause no delay. The Architect s approval of a specific item shall not indicate approval of an assembly of which the item is a component The Architect shall prepare Change Orders for the Owner s approval and execution in accordance with the Contract Documents, and with the Owner s written approval, shall have authority to order minor changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time which are not inconsistent with the intent of the Contract Documents The Architect and his consulting engineers shall conduct at least one inspection per month, as appropriate, for each of the following disciplines for the project: architectural, civil, mechanical, HVAC, structural and electrical fire safety, and prepare punch lists. During critical phases of construction, additional inspections by the Architect and consulting engineer will be expected. The inspections shall be made at intervals appropriate to the stage of construction to determine that the construction is being completed in accordance with the Contract Documents (a) Definition of inspect and inspection : As used herein, the terms inspect and inspection shall refer to visual observations of construction by the Architect or consulting engineer in order to determine whether the Work is generally proceeding in accordance with the Contract Documents The extent of the duties, responsibilities and limitations of authority of the Architect as the Owner s representative during construction shall not be modified or extended without written consent of the Owner and the Architect The Architect shall also have authority to require the Contractor to stop work whenever, in his reasonable opinion, it may be necessary for the proper performance of the contract. In the event the Architect stops the Work and is incorrect in doing so, the Architect shall bear the extra cost incurred for work stoppage. However, neither this authority nor a decision made to exercise or not exercise such authority shall give rise to a duty or responsibility of the Architect to the Page 8

9 Contractor, Subcontractors, material and equipment suppliers, or other persons or entities performing portions of the Work The Architect shall determine the dates of substantial and final completion. In conjunction with input from the Contractor or the Construction Manager, the Consulting Engineers and the Owner s representative, the Architect shall conduct an inspection at the point of substantial completion and prepare a punch list identifying any and all items in variance with the requirements of the construction documents and typical standards of the construction industry. The Architect shall perform a final inspection to verify that all of the items listed on the punch list have been completed in a satisfactory manner. The Architect shall, upon final completion of the Project, including correction of the discrepancies on the punch list, prepare a Certificate of Final Inspection and submit same to the Owner. The Architect shall furnish to the Owner a Certificate of Final Inspection (State Department of Education OEF Form 209) and such other Certificates as may be required by laws and regulations and the Contract Documents The Architect shall, during the course of construction, submit Progress Reports to the Owner or its designated representative at least every two (2) weeks. These reports shall state the progress of the job and whether or not, to the best of the Architect s knowledge, construction is being accomplished in accordance with the Contract Documents. Modifications to drawings which shall be reflected in final as-built drawings shall be entered weekly during the course of construction and shall be reviewed by the Project Architect The Architect shall, at final completion of the Project, certify that, to the best of his knowledge, the project has been constructed in accordance with the Contract Documents, the latest version of SREF and FS1013. Certification to the same conditions will be required by the Structural, Civil, Electrical, and Mechanical Engineers The Architect shall accompany the Owner s representative on an inspection of the Project at a date not less than thirty (30) days prior to the date of expiration of the Contractor s one-year guarantee, for the purpose of preparing a list of deficiencies that the Contractor is to correct under the conditions of the warranty and guarantees, and to conduct a post occupancy evaluation of the project The Architect shall, at the completion of the Project, prepare and furnish to the Owner, one (1) set of as-built prints (record drawings) and one (1) CAD disc(s) containing as-built drawings showing significant changes in the project work made during construction based on marked-up prints, drawings and other data furnished by the Contractor or Construction Manager to the Architect. Significant changes and modifications to the project work recorded by the Contractor or Construction Manager on marked-up prints, drawings and other data shall be kept current by the Contractor or Construction Manager and shall be reviewed by the Architect weekly during the Construction Phase. The Architect will provide the Owner with one (1) copy of 11 x 17 size floor plans for each floor of the building showing room numbers and copies of CAD discs showing final documents including utilities and all services in Drawing (DWG) format. Page 9

10 1.10 PROJECT REPRESENTATION BEYOND BASIC SERVICES If the Owner and Architect agree that more extensive representation at the site than is described in Paragraph 1.5 shall be provided, the Architect shall provide one or more Project Representatives to assist the Architect in carrying out such responsibilities at the site Such Project Representatives shall be selected, employed and directed by the Architect, and the Architect shall be compensated therefore as mutually agreed between the Owner and the Architect as set forth in a future addendum to this Agreement, which shall describe the duties, responsibilities and limitation of authority of such Project Representatives ADDITIONAL SERVICES The following services are not included in Basic Services unless so identified in Article 14. They shall be provided if authorized or confirmed in writing by the Owner, and they shall be paid for by the Owner as provided in this Agreement, in addition to the compensation for Basic Services Project. Providing analysis of the Owner s needs, and programming the requirements of the Providing financial feasibility or other special studies for work beyond the scope of work noted in this agreement Providing planning surveys, site evaluations, environmental studies or comparative studies of prospective sites, and preparing special surveys, and studies Providing services relative to future facilities, systems and equipment which are not intended to be constructed as part of the Project; provided, however, that nothing contained in this Subparagraph shall in any way negate the Architect s responsibility, where applicable, for design suitable for anticipated expansion, modernization or change Providing services to investigate existing conditions or facilities or to make measured drawings thereof, or to verify the accuracy of drawings or other information furnished by the Owner Preparing documents of alternate, separate or sequential bids or providing extra services in connection with bidding, negotiation or construction prior to the completion of the Construction Documents Phase, when requested by the Owner Providing services in connection with the Work of multiple Construction Managers Providing Detailed Estimates of Construction Cost analysis of owning and operating costs, or detailed quantity surveys or inventories of material, equipment and labor Providing interior design and other similar services required for or in connection with the selection, procurement or installation of furniture, furnishings and related equipment Providing services for planning temporary rental spaces during construction. Page 10

11 Making revisions in Drawings, Specifications or other documents when such revisions are inconsistent with written approvals or instructions previously given, are required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents or are due to other causes not within the control of the Architect Preparing Drawings, Specifications and supporting data and providing other services in connection with Change Orders to the extent that the adjustment in the Basic Compensation resulting from the adjusted Construction Cost is not commensurate with the services required by the Architect, provided such Change Orders are required by causes not solely within the control of the Architect Providing consultation concerning replacement of any work damaged by fire or other cause during construction, and furnishing services as may be required in connection with the replacement of such work Providing services after issuance to the Owner of the Final Certificate for Payment, or in the absence of a final Certificate for Payment, more than sixty (60) days after the Date of Substantial Completion of the work except related to corrections or additional work previously noted or agreed to by Owner as identified in 1.9 of this Agreement Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding or legal proceeding except where the Architect is a named party Providing services of consultants for work exceeding the scope of work identified herein other than the normal engineer or consultant, civil, structural, mechanical and electrical including air conditioning services for the project Providing any other services not otherwise included in this Agreement or not customarily furnished in accordance with generally accepted architectural practice TIME The Architect shall perform basic and additional services as expeditiously as is consistent with professional skill and care and the orderly progress of the work. The Architect shall submit for the Owner s approval a schedule for the performance of the Architect s services, and shall include allowances for periods of time required for the Owner s review and approval of submissions and for approvals of authorities having jurisdiction over the project. This schedule, when approved by the Owner, shall not, except for reasonable cause, be exceeded by the Architect. Page 11

12 ARTICLE 2 THE OWNER S RESPONSIBILITIES 2.1 The Owner shall provide full information regarding requirements for the project including a program, which shall set forth the Owner s design objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability, special equipment and systems and site requirements. 2.2 If the Owner provides a budget for the project it may include contingencies for bidding, changes in the work during construction, and other costs which are the responsibility of the Owner, including those described in this Article 2 and in Article The Owner shall furnish required information and services and shall render approvals and decisions as expeditiously as reasonably necessary for the orderly progress of the Architect s services and of the work. 2.4 The Owner shall furnish a legal description and a certified land survey of the site, giving, as applicable, grades and lines of streets, alleys, pavements and adjoining property; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and data pertaining to existing buildings, other improvements and trees; and information concerning available service and utility lines both public and private, above and below grade, including inverts and depths. The Architect shall provide in writing to the Owner the elements needed in the survey to meet the requirements of the project. 2.5 The Owner shall furnish the services of soil engieers or other consultants when such services are deemed necessary by the Architect. Such services shall include test borings, test pits, soil bearing values, percolation tests, air and water pollution tests, ground corrosion and resistivity tests, including necessary operations for determining subsoil, air and water conditions, with reports and appropriate professional recommendations. The Architect shall provide in writing to the Owner the services needed to meet the requirements of the project, and a schedule of such needs allowing reasonable time for Owner to obtain such needed services. 2.6 The Owner shall furnish structural, mechanical, chemical and other laboratory tests, inspections and reports as required by law or the contract documents. 2.7 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the project, including such auditing services as the Owner may require to verify the Contractor s or Construction Manager s Applications for Payment or to ascertain how or for what purposes the contractor uses the moneys paid by or on behalf of the Owner. 2.8 The services, information, surveys and reports required by Paragraphs 2.4 through 2.7 inclusive shall be furnished at the Owner s expense within a reasonable time after the Architect s written request to the Owner. 2.9 If the Owner observes or otherwise becomes aware of any material fault or defect in the project or nonconformance with the contract documents, prompt written notice thereof shall be given Page 12

13 by the Owner to the Architect. The Architect shall provide a detailed response to the Owner noting all corrective actions required and a timeframe for each action. Architects initial response shall be submitted within 2 weeks and proposed actions must be approved by the Owner. ARTICLE 3 CONSTRUCTION COST 3.1 DEFINITION OF CONSTRUCTION COST Construction cost to be used as a basis for determining the Architect s fee, which shall be in compliance with the requirements of the Department of Management Services for the State of Florida, for all work designed or specified by the Architect, including labor, materials, and built-in equipment, shall be determined as follows: 3.1.1(a) Orders. For completed construction, the total cost of all such work including all approved Change Construction cost does not include the compensation of the Architect and the Architect s consultants, the cost of the land, rights-of-way, or other costs which are the responsibility of the Owner as provided in Article RESPONSIBILITY FOR CONSTRUCTION COST Evaluations of the Owner s project budget, Statements of Probable Construction Cost and Detailed Estimates of Construction Cost, if any, shall represent the Architect s best judgment as a design professional familiar with the construction industry. However, the Architect does not warrant or represent that bids or negotiated prices will not vary from the Project Budget proposed, established or approved by the Owner, if any, or from any Statement of Probable Construction Cost or other cost estimate or evaluation prepared by the Architect No fixed limit of construction cost shall be established as a condition of this Agreement by the furnishing, proposal or establishment of a project budget under Subparagraph or Paragraph 2.2 or otherwise, unless such fixed limit has been agreed upon in writing and signed by the parties hereto. If such a fixed limit has been established, the Architect shall be permitted to include contingencies for design, bidding and price escalation, to determine what materials, equipment, component systems and types of construction are to be included in the contract documents, to make reasonable adjustments in the scope of the project and to include in the contract documents alternate bids to adjust the construction cost to a fixed limit. Any such fixed limit shall be increased in the amount of any increase in the contract sum occurring after execution of the Contract for Construction If the Bidding or Negotiation Phase has not commenced within three (3) months after the Architect submits the construction documents to the Owner, any project budget or fixed limit of construction cost shall be adjusted to reflect any change in the general level of prices in the construction industry between the date of submission of the construction documents to the Owner and the date on which proposals are sought. Page 13

14 3.2.4 If a project budget or fixed limit of construction cost (adjusted as provided in Subparagraph 3.2.3) is exceeded by the lowest bona fide bid or negotiated proposal, the Owner may (1) give written approval of an increase in such fixed limit, (2) authorize rebidding or renegotiating of the project within a reasonable time, (3) terminate in accordance with Paragraph 10.2, or (4) cooperate in revising the project scope and quality as required to reduce the construction costs. In the case of (4), provided a fixed limit of construction cost has been established as a condition of this Agreement, the Architect, without additional charge, shall modify the drawings and specifications as necessary to comply with the fixed limit. In the event no such fixed limit of construction cost has been established, the Owner may authorize the Architect, as an additional service, to modify the drawings and specifications as necessary to comply with the project budget. ARTICLE 4 DIRECT PERSONAL EXPENSE 4.1 Direct Personnel Expense is defined as the salaries of all the Architect s personnel directly engaged on the Project, and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits beyond the limits of the Basic Services. ARTICLE 5 REIMBURSABLE EXPENSES 5.1 Reimbursable expenses are in addition to the compensation for Basic and Additional Services and include actual expenditures made by the Architect and the Architect s employees and consultants in the interest of the project only for the expenses listed in the following subparagraphs: Expense of reproductions, postage and handling of drawings, specifications and other documents, excluding reproductions for the office use of the Architect and the Architect s consultants Expense of data processing and photographic production techniques when used in connection with Additional Services If authorized in advance in writing by the Owner, expense of overtime work requiring higher than regular rates Page 14

15 ARTICLE 6 PAYMENTS TO THE ARCHITECT 6.1 PAYMENTS ON ACCOUNT OF BASIC SERVICES Payments for Basic Services shall be made monthly and shall be in proportion to services performed within each phase of services, on the basis set forth in Article When compensation is based on a percentage of construction cost, and through no fault of the Architect, any provisions of the project are deleted or otherwise not constructed, compensation for such portions of the project shall be payable to the extent services are performed on such portions, in accordance with the schedule set forth in Subparagraph , based on (1) the lowest bona fide bid or negotiated proposal or (2) the most recent Statement of Probable Construction Cost or Detailed Estimate of Construction Cost for such portions of the project, whichever is lower. 6.2 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES Payments on account of the Architect s Additional Services as defined in Paragraph 1.11 and for reimbursable expenses as defined in Article 5 shall be made monthly upon presentation of the Architect s documented statement of services rendered or expenses incurred. 6.3 PAYMENTS WITHHELD No deductions shall be made from the Architect s compensation on account of penalty, liquidated damages or other sums withheld from payments to contractors, or on account of the cost of changes in the work other than those for which the Architect is responsible. 6.4 PROJECT SUSPENSION OR TERMINATION If the project is suspended or abandoned in whole or in part for more than three (3) months, the Architect shall be compensated for all services performed prior to receipt of written notice from the Owner of such suspension or abandonment, together with reimbursable expenses then due and all termination expenses as defined in Paragraph If the project is resumed after being suspended for more than three (3) months, the Architect s compensation shall be equitably adjusted. ARTICLE 7 ARCHITECT S ACCOUNTING RECORDS 7.1 Records of reimbursable expenses and expenses pertaining to additional services and services performed on the basis of a Multiple of Direct Personnel Expense shall be kept on the basis of generally accepted accounting principles and shall be available to the Owner or the Owner s authorized representative at mutually convenient times. Page 15

16 ARTICLE 8 OWNERSHIP AND USE OF DOCUMENTS 8.1 Drawings and Specifications and any and all other documents and instruments prepared by the Architect, shall, upon receipt and approval by the Owner, become and remain the property of the Owner whether the project for which they are made is executed or not. Any reuse of such documents and instruments without the written agreement of the Architect will be at the Owner s sole risk and without liability or legal exposure to the Architect; and the Owner, to the extent allowed by the law, shall indemnify and hold harmless the Architect from any and all claims, damages, losses and expenses arising out of or resulting therefrom. ARTICLE 9 DISPUTES 9.1 All claims, disputes and other matters in question arising out of, or relating to, this Agreement or the breach thereof shall be decided in a court of law in West Palm Beach, Florida. ARTICLE 10 TERMINATION OF AGREEMENT 10.1 This Agreement may be terminated by Owner upon seven (7) days written notice to the Architect if Architect, in Owners sole discretion, should fail to perform in accordance with the terms of this Agreement This Agreement may be terminated by the Architect upon providing 30 days notice for the Owner. Such notice shall provide detailed notice of Owners substantial failure under the terms of this Agreement and Owner shall have the right, but not the obligation, to cure the noted failure within this period In the event of termination not the fault of the Architect, the Architect shall be compensated for all services performed to termination date, together with reimbursable expenses, then due and all termination expenses as defined in Paragraph Termination expenses include expenses directly attributable to termination for which the Architect is not otherwise compensated. Such expenses may include such items as the cost actually associated with the termination of an employee that is no longer needed on the project, but cannot include such items as lost profit or wages resulting from the termination consequential damages or damages for lost opportunity. Page 16

17 ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 This Agreement shall be governed by the law of the state of Florida, without regard to its conflicts of law provisions of the principal place of business of the Owner Terms in this Agreement shall have the same meaning as those in the General Conditions of the Contract for Construction, provided by the Owner which are current as of the date of this Agreement CONSULTANTS COMPETITIVE NEGOTIATIONS ACT This Agreement shall comply with the provisions of the Consultants Competitive Negotiations Act, section , Fla. Stat., as amended and all other applicable Florida law If the total paid to the Architectural Projects Consultant exceeds the amount noted in F.S category four in compliance with F.S (5)(a) the following provisions shall apply: (a) The Architect shall execute and furnish to the Board, upon request, a truth-in-negotiation certificate stating that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time of contracting (b) The original contract price and any additions thereto shall be adjusted to exclude any significant sums when the Board determines the contract price was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual costs. All such contract adjustments shall be made within one year following the end of contract The Architect warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Architect, registered land surveyor or professional engineer to solicit or secure this Agreement, and that he has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for the Architect, registered land surveyor, landscape Architect or professional engineer any fee, commission, percentage, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. Page 17

18 11.5 PROFESSIONAL LIABILITY INSURANCE Upon execution hereof, the Architect shall furnish the Owner with evidence that the Architect is insured against professional errors and omissions in an amount not less than $1,000,000 and shall further provide to the Owner a certificate from his insurer that said insurance will not be diminished, cancelled or terminated absent thirty (30) days advance written notice to the Owner by registered mail. Said insurance shall be provided by an insurance company authorized and licensed to do business in the State of Florida, and said company, along with the terms and conditions of the policy furnished, shall be subject to approval by the Owner. The Architect further agrees to maintain said professional errors and omissions liability coverage throughout the period covered by this Agreement and for a period of one year following substantial completion of the project. The deductible amount of this policy shall be in accordance with Board Policy 6Hx ARTICLE 12 SUCCESSORS AND ASSIGNS 12.1 The Owner and the Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and to the partners, successors, assigns and legal representatives of such other party with respect to all covenants of this Agreement. The Architect shall not assign, sublet or transfer any interest in this Agreement without the written consent of the other. It is understood that this is a contract for personal services of the Architect hereinabove named or his qualified representatives. If, for any reason, the Architect is unable to perform the services under this contract in the time agreed upon by the Owner and the Architect, the Owner shall have the right to either name or approve the Architect selected to complete the performance of this Agreement. ARTICLE 13 EXTENT OF AGREEMENT 13.1 This Agreement represents the entire and integrated agreement between the Owner and the Architect 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. ARTICLE 14 BASIS OF COMPENSATION The Owner shall compensate the Architect for the Scope of Services provided, in accordance with Article 6, Payments to the Architect, and the other Terms and Conditions of this Agreement, as follows: Page 18

19 14.1 BASIC COMPENSATION For Basic Services, as described in Paragraphs 1.1 through 1.3, and any other services included in Article 14 as part of Basic Services, Basic Compensation shall be computed as follows: Fixed Fee: $ Where compensation is based on a stipulated sum or percentage of construction cost, payments for basic services shall be made as provided in Subparagraph 6.1.2, so that basic compensation for each phase shall equal the following percentages of the total basic compensation payable: Completion of Phase I Schematics Completion of Phase II Preliminaries Completion of Phase III Finals Bid and Award Phase Completion of Construction Project Close-Out Post Construction Fifteen Thirty-five Seventy-five Eighty Ninety Ninety-seven One hundred percent (15%) percent (35%) percent (75%) percent (80%) percent (90%) percent (97%) percent (100%) Project Close-Out Is Defined As Follows: (a) Substantial Completion (b) State Inspection Completed & CFI Received by Owner (c) Punch List items completed (d) All contract required documents, including but not limited to releases of liens, warranties, guarantees, operational manuals, as-built drawings; roof bonds; etc. delivered by Architect to Owner Post Construction Is Defined As Follows: (a) Warranty review services during the duration of the warranties in connection with inadequate performance of materials, systems and equipment under warranty. To include documenting defects and deficiencies and assisting the Owner in having contractor correct noted defects (b) Post occupancy review to be completed at a date no earlier than thirty (30) days prior to the expiration of the contractor s one-year guarantee FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in Paragraph 1.10, compensation shall be computed separately in accordance with Subparagraph Page 19