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2008-041 Tennis Facility Architect Agreement• RESOLUTION 2008-41 A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF NORTH PALM BEACH, FLORIDA, APPROVING AN AGREEMENT WITH PEACOCK + LEWIS ARCHITECTS AND PLANNERS, INC. FOR DESIGN OF THE VILLAGE TENNIS FACILITY AND AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE THE AGREEMENT; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Brian Idle, of Peacock + Lewis Architects and Planners, Inc. has agreed to provide architectural services for the design of the new Village tennis facility at a substantially discounted cost, thereby eliminating the need for bidding or competitive selection; and WHEREAS, the Village Council wishes to enter into an Agreement with Peacock + Lewis for the performance of architectural services and determines that the approval of such agreement is in the best interests of the Village and its residents. NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF NORTH PALM BEACH, FLORIDA as follows: • Section 1. The foregoing recitals are ratified and incorporated herein. Section 2. The Village Council hereby approves the Agreement for Architectural Services with Peacock + Lewis Architects and Planners, Inc., a copy of which is attached hereto and incorporated herein, and authorizes the Mayor and Village Clerk to execute the Agreement on behalfofthe Village. Section 3. The cost of this contract shall not exceed $9,995.00 and shall be funded Account #A8050-66210 (Tennis -Construction and Major Renovation). Section 4. This Resolution shall take effect immediately upon adoption. PASSED AND ADOPTED THIS 12th DAY OF JUNE 2008. ~j~ (Village Seal) ~~~~~~~ ~,~~%~,~ R;G~SL/ MAYOR ATTEST: VILLAGE CLERK AGREEMENT made as of the~day of /j/~ in the year 2008. BETWEEN the Architect's client identified as the Owner: Village of North Palm Beach, a Florida municipal corporation 501 U.S. Highway One North Palm Beach, Florida 33408 and the Architect: Peacock + Lewis Architects and Planners, Inc., a Florida corporation 11760 U.S. Highway One Suite 102 North Palm Beach, Florida 33408 For the following Project: The Project shall include the design of the Village Tennis Facility and the preparation of construction and bidding documents for the Tennis Facility. The Village Tennis Facility shall be based on the footprint of the existing Palm Beach Gardens Tennis Facility, with expanded restrooms that include exterior doors. The Facility shall be designed for CBS construction with a wood-truss roofing system. The Owner and Architect agree as follows: ARTICLE 1 ARCHITECT'S RESPONSIBILITIES § 1.1 The services performed by the Architect, Architect's employees and Architect's consultants shall be as enumerated in Articles 2 and 3. § 1.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and care and the orderly progress of the Project. The Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services which may be adjusted as the Project proceeds. This schedule shall not exceed a total of one hundred and twenty (120) days and shall include allowances for periods of time required for the Owner's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the Owner shall not, except for reasonable cause, be exceeded by the Architect or Owner. § 1.3 The Architect shall designate a representative authorized to act on behalf of the Architect with respect to the Project. ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES § 2.1 DEFINITION The Architect's Basic Services consist of those described in Sections 2.2 through 2.5 and any other services identified in Article 12 as part of Basic Services, and include normal structural, mechanical and electrical engineering services. § 2.2 SCHEMATIC DESIGN PHASE § 2.2.1 The Architect shall review the program furnished by the Owner to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the Owner. § 2.2.2 The Architect shall provide a preliminazy evaluation of the Owner's program, schedule and construction budget requirements, each in terms of the other, subject to the limitations set forth in Section 5.2.1. § 2.2.3 Based on the mutually agreed-upon program, schedule and construction 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. § 2.2.4 The Architect shall submit to the Owner a preliminary estimate of Construction Cost based on current area, volume or similaz conceptual estimating techniques. § 2.3 DESIGN DEVELOPMENT PHASE § 2.3.1 Based on the approved Schematic Design Documents and any adjustments authorized by the Owner in the program, schedule or construction 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 chazacter of the Project as to architectural, structural, mechanical and electrical systems, materials and such other elements as may be appropriate. § 2.3.2 The Architect shall advise the Owner of any adjustments to the preliminary estimate of Construction Cost. § 2.3.3 The Architect's Basic Services shall include at least two (2) presentations of the Design to the Owner and the public at Village Planning Boazd or Village Council meetings. § 2.4 CONSTRUCTION DOCUMENTS PHASE § 2.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the Project or in the construction 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. § 2.4.2 The Architect will provide the Owner with the standard form documents and will assist the Owner in preparing the necessary bidding information, bidding forms, the Conditions of the Contract, and the form of Agreement between the Owner and Contractor. -2- § 2.4.3 The Architect shall advise the Owner of any adjustments to previous preliminary estimates of Construction Cost indicated by changes in requirements or general market conditions. § 2.5 BIDDING OR NEGOTIATION PHASE The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in awarding and preparing contracts for construction. § 2.6 CONSTRUCTION MANAGEMENT SERVICES The Basic Services of the Architect shall not include construction administration and management services. The Architect shall, however, as part of the Basic Services, respond to questions from the Owner regarding the interpretation or implementation of the design plans. Additionally, the Architect shall make all necessary changes to the drawings, specifications, and other documents produced by the Architect when such changes result from design flaws or are otherwise attributable to the actions of the Architect. ARTICLE 3 ADDITIONAL SERVICES § 3.1 GENERAL § 3.1.1 The services described in this Article 3 are not included in Basic Services and they shall be paid in addition to the compensation for Basic Services only if authorized or confirmed in writing by the Owner. § 3.2 CONTINGENT ADDITIONAL SERVICES § 3.2.1 Making revisions in drawings, specifications or other documents when such revisions are: .1 inconsistent with approvals or instructions previously given by the Owner, including revisions made necessary by adjustments in the Owner's program or Project budget; .2 required by the enactment or revision of codes, laws or regulations subsequent to the preparation of such documents; or .3 due to changes required as a result of the Owner's failure to render decisions in a timely manner. § 3.2.2 Providing services required because of significant changes in the Project including, but not limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and contracting for construction. § 3.2.3 Preparing Drawings, Specifications and other documentation and supporting data, evaluating Contractor's proposals, and providing other services in connection with Change Orders and Construction Change Directives. § 3.2.4 Providing services in connection with evaluating substitutions proposed by the Contractor and making subsequent revisions to Drawings, Specifications and other documentation resulting therefrom. -3- § 3.2,5 Providing consultation concerning replacement of Work damaged by fire or other cause during construction, and furnishing services required in connection with the replacement of such Work. § 3.2.6 Providing services made necessary by the default of the Contractor, by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. § 3.2.7 Providing services in connection with a dispute resolution proceeding or a legal proceeding except where the Architect is party thereto. ARTICLE 4 OWNER'S RESPONSIBILITIES § 4.1 The Owner shall provide full information in a timely manner regarding requirements for and limitations on the Project, including a written program which shall set forth the Owner's objectives, schedule, constraints and criteria, including space requirements and relationships, flexibility, expandability, special equipment, systems and site requirements. § 4.2 The Owner shall establish and periodically update an overall budget for the Project, including the Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs. § 4.3 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the Project. The Owner or such designated representative shall render decisions in a timely manner pertaining to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and sequential progress of the Architect's services. § 4.4 The Owner shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The survey: and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights-of--way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data with respect to existing buildings, other improvements and trees; and information conceming available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark. § 4.5 The Owner shall furnish the services of geotechnical engineers when such services are requested by the Architect and necessary for completion of the Basic Services. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate recommendations. § 4.6 The Owner shall furnish the services of consultants other than those designated in Section 4.5 when such services are requested by the Architect and are required by the scope of the Project. § 4.7 The Owner shall furnish all legal, accounting and insurance services that may be necessary at any time for the Project to meet the Owner's needs and interests. -4- § 4.8 The services, information, surveys and reports required above shall be furnished at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof. § 4.9 The Owner shall provide prompt written notice to the Architect if the Owner becomes awaze of any fault or defect in the Project, including any errors, omissions or inconsistencies in the Architect's Instruments of Service. ARTICLE 5 CONSTRUCTION COST § 5.1 DEFINITION § 5.1.1 The Construction Cost shall be the total cost or, to the extent the Project is not completed, the estimated cost to the Owner of all elements of the Project designed or specified by the Architect. § 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished by the Owner and equipment designed, specified, selected or specially provided for by the Architect, plus a reasonable allowance for their overhead and profit. In addition, a reasonable allowance for contingencies shall be included for market conditions at the time of bidding and for changes in the Work. § 5.1.3 Construction Cost does not include the compensation of the Architect and the Architect's consultants, the costs of the land, rights-of--way and financing or other costs that aze the responsibility of the Owner as provided in Article 4. § 5.2 RESPONSIBILITY FOR CONSTRUCTION COST § 5.2.1 Evaluations of the Owner's Project budget, the preliminary estimate of Construction Cost and detailed estimates of Construction Cost, if any, prepazed by the Architect, represent the Architect's judgment as a design professional familiar with the construction industry. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Owner's Project budget or from any estimate of Construction Cost or evaluation prepazed or agreed to by the Architect. § 5.2.2 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 § 5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, any Project budget shall be adjusted to reflect changes in the general level of prices in the construction industry. -5- ARTICLE 6 USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS § 6.1 Architect acknowledges that any work prepared by Architect and Architect's consultants under this Agreement shall be considered a "Work for Hire" and the exclusive property of Owner. § 6.2 The Owner shall use the drawings and specifications prepared by the Architect or the Architect's consultants only for this Project and maintenance of the Project after completion. The Owner shall not use or re-use the drawings and specifications prepared by the Architect or the Architect's consultants for future improvements to the Project or other projects, unless the Owner obtains the prior written agreement of the Architect and the Architect's consultants. The Owner shall not sell or transfer ownership of the Drawings and Specification to others except by agreement in writing and with appropriate compensation to the Architect, unless provided in accordance with Florida law. The Architect shall retain copies of the original documents for a period of three (3) years from the date of completion of the Project. The Owner grants to the Architect and Architect's consultants the right and/or limited license to use a portion of the drawings and/or specifications prepared by the Architect or the Architect's consultants for this Project in future projects of the Architect or the Architect's consultants with said right and/or limited license to use at Architect's or Architect's Consultant's own risk and without any liability to Owner. ARTICLE 7 DISPUTE RESOLUTION § 7.1 MEDIATION § 7.1.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party. If such matter relates to or is the subject of a lien arising out of the Architect's services, the Architect may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the matter by mediation. § 7.1.2 The Owner and Architect shall endeavor to resolve claims, disputes and other matters in question between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to this Agreement and with the American Arbitration Association. The mediation shall proceed in advance of legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § 7.1.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 7.2 CLAIMS FOR CONSEQUENTIAL DAMAGES The Architect and Owner waive consequential damages for claims, disputes or other matters in question arising out of or relating to this Agreement. This mutual waiver is applicable, without 6- limitation, to all consequential damages due to either party's termination in accordance with Article 8. ARTICLE 8 TERMINATION OR SUSPENSION § 8.1 If the Owner Fails to make payments to the Architect in accordance with this Agreement, such failure shall be considered substantial nonperformance and cause for termination or, at the Architect's option, cause for suspension of performance of services under this Agreement. If the Architect elects to suspend services, prior to suspension of services, the Architect shall give seven days' written notice to the Owner. In the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage caused the Owner because of such suspension of services. Before resuming services, the Architect shall be paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § 8.2 If the Project is suspended by the Owner for more than 30 consecutive days, the Architect shall be compensated for services performed prior to notice of such suspension. When the Project is resumed, the Architect shall be compensated for expenses incurred in the interruption and resumption of the Architect's services. The Architect's fees for the remaining services and the time schedules shall be equitably adjusted. § 8.3 If the Project is suspended or the Architect's services are suspended for more than 90 consecutive days, the Architect may terminate this Agreement by giving not less than seven days' written notice. § 8.4 This Agreement may be terminated by either party upon not less than seven days' written notice should the other party fail substantially to perform in accordance with the terms of this Agreement through no fault of the party initiating the termination. § 8.5 This Agreement may be terminated by the Owner upon not less than seven days' written notice to the Architect for the Owner's convenience and without cause. § 8.6 In the event of termination not the fault of the Architect, the Architect shall be compensated for services performed prior to termination, together with Reimbursable Expenses then due. ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 This Agreement shall be governed by the laws of the State of Florida. § 9.2 Terms in this Agreement shall have the same meaning as those in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. § 9.3 To the extent damages are covered by property insurance during construction, the Owner and Architect waive all rights against each other and against the contractors, consultants, agents and employees of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth in the edition of AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement. The Owner or the Architect, 7- as appropriate, shall require of the contractors, consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated herein. § 9.4 The Owner and 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. Neither the Owner nor the Architect shall assign this Agreement without the written consent of the other. § 9.5 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. § 9.6 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. § 9.7 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to hazardous materials or toxic substances in any form at the Project site. § 9.8 The Architect shall have the right to include photographic or artistic representations of the design of the Project among the Architect's promotional and professional materials. The Architect shall be given reasonable access to the completed Project to make such representations. However, the Architect's materials shall not include the Owner's confidential or proprietary information if the Owner has previously advised the Architect in writing of the specific information considered by the Owner to be confidential or proprietary. The Owner shall provide professional credit for the Architect in the Owner's promotional materials for the Project. § 9.9 If the Owner requests the Architect to execute certificates, the proposed language of such certificates shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. The Architect shall not be required to execute certificates that would require knowledge, services or responsibilities beyond the scope of this Agreement. § 9.10 If any provision of this Agreement is deemed unenforceable by a court of competent jurisdiction, then said provision shall be deemed stricken from said Agreement as if it never existed; however, all other terms and conditions shall remain enforceable and all other provisions in accordance with this Agreement. § 9.11 This Agreement shall not be construed against the party who drafred the same, as both parties have obtained experts of their choosing to review the legal and business adequacy of the same. § 9.12 Except for mediation, if any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, court costs and all expenses (including taxes) even if not taxable as court awarded costs (including, without limitation, all such fees, costs and expenses incident to appeals), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. 8- § 9.13 The Architect is, and shall be, in the performance of all work, services and/or activities under this Agreement, an Independent Contractor, and not an employee, agent, or servant of the Owner. All persons engaged in any of the work, services and/or activities performed pursuant to this Agreement by the Architect shall at all times, and in all places, be subject to the Architect's sole direction, supervision, and control. The Architect shall exercise control over the means and manner in which it and its consultants and employees perform the work. The Architect does not have the power or authority to bind the Owner in any promise, agreement or representation other than as specifically provided for in this Agreement. § 9.14 Failure of either party to enforce or exercise any right(s) under this Agreement shall not be deemed a waiver of said party's right to enforce or exercise said right(s) at any time thereafter. § 9.15 The Architect shall indemnify and hold harmless the Owner and its officers and employees, from liabilities, damages, losses, and costs, including but not limited to, reasonable attorney's fees (at the trial and appellate levels), to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Architect or other persons employed or utilized by the Architect in the performance of the services contemplated by this Agreement. The Owner shall indemnify and hold harmless the Architect and its officers and employees from liabilities, damages, -osses and costs, including but not limited to, reasonable attorney's fees (at the trial and appellate levels), relating to the Owner's obligations under this Agreement to the extent caused by the negligence, recklessness or intentionally wrongful conduct of the Owner or its officers and employees. 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 the Architect, nor shall this Agreement be construed as a waiver of sovereign immunity beyond the limited waiver provided in § 768.28, Florida Statutes. ARTICLE 10 PAYMENTS TO THE ARCHITECT § 10.1 REIMBURSABLE EXPENSES § 10.1.1 Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the Architect and Architect's employees and consultants directly related to the Project, as identified in the following Clauses: .1 fees paid for securing approval of authorities having jurisdiction over the Project; or .2 reproductions, plots, standard form documents, postage, handling and delivery of Instruments of Service. § 10.2 PAYMENTS ON ACCOUNT OF BASIC SERVICES § 10.2.1 Payments for Basic Services shall be made monthly and, where applicable, shall be in proportion to services performed within each phase of service, on the basis set forth in Section 11.1.2. Payments are due and payable twenty (20) days from the date of the Architect's invoice. § 10.3 PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made monthly upon presentation of the Architect's statement of services rendered or expenses incurred. 9- § 10.4 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 has been adjudged to be liable. § 10.5 ARCHITECT'S ACCOUNTING RECORDS Records of Reimbursable Expenses shall be available to the Owner or the Owner's authorized representative at mutually convenient times. ARTICLE 11 BASIS OF COMPENSATION The Owner shall compensate the Architect as follows: § 11.1 BASIC COMPENSATION § 11.1.1 For Basic Services, as described in Article 2, the Owner shall pay the Architect the stipulated sum of nine thousand nine hundred and ninety-five dollars and zero cents ($9,995.00). § 11.1.2 Where compensation is based on a stipulated sum or percentage of Construction Cost, progress payments for Basic Services in each phase shall total the following percentages of the total Basic Compensation payable: Schematic Design Phase: Ten percent (10%) Design Development Phase: Forty percent (40%) Construction Documents Phase: Forty percent (40%) Bidding or Negotiation Phase: Ten percent (10%) § 11.2 REIMBURSABLE EXPENSES For Reimbursable Expenses, as described in Section 10.1, the Owner shall pay to the Architect the actual cost of such expenses. This Agreement entered into as of the day and year first written above. [Remainder of page blank -signatures on next page] -10- OWNER ARCHITECT Village of North Palm Beach, Florida Peacock + L8 's Archi sand municipal corporation Inc, a Florid c o ti v,,~~ i 'William Manuel, Mayor ~~ ~ ~ '~ Print 1~ame: ~ ~ AYt~sty ~ Title: ~. @~9(~P~.,$e~~ .~~~~Q ~~ 'Iy,~eais~~~Teal, Village ~erk