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HomeMy WebLinkAboutR-2023-010 Resolution awarding RFQ 12214Q and authorizing an agreement with NAC Architecture, for Aquatic Pool Design ServicesRESOLUTION NO. R-2023-010 A RESOLUTION awarding RFQ 12214Q and authorizing an agreement with NAC Architecture for Aquatic Pool Design Services. WHEREAS, the City of Yakima seeks to contract with a qualified consulting firm for aquatic pool design services and construction management of the Martin Luther King Jr Park Pool Project; and WHEREAS, the project goal is to develop plans, specifications and bid documents needed for the construction of a public swimming pool located in east Yakima; and, WHEREAS, the City of Yakima Purchasing Division issued RFQ 12214Q requesting statement of qualifications from interested firms; and WHEREAS, Recommendation of Intent to Negotiate was made to NAC Architecture; and WHEREAS, the Scope of Work and Budget included in this agreement meet the needs and requirements of the City of Yakima for this project, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute an Agreement with NAC Architecture for Aquatic Pool Design Services, attached hereto and incorporated herein by this reference. ADOPTED BY THE CITY COUNCIL this 3rd day of January, 2023. ATTEST: 00/icit Janice Deccio, Mayor Sonya Claar Tee, City Cl Y r . SEAL *.. AGREEMENT BETWEEN CITY OF YAKIMA, WASHINGTON AND NAC ARCHITECTURE FOR PROFESSIONAL SERVICES THIS AGREEMENT, made and entered into on this 3rd day of January, 2023, by and between the City of Yakima, Washington, a municipal corporation with its principal office at 129 North Second Street, Yakima, WA 98901, (hereinafter referred to as "CITY"), and NAC Architecture with its principal office at 1203 )AI Riverside Ave, Spokane, WA 99201-1107, (hereinafter referred to as "ARCHITECT); said corporation being licensed and registered to do business in the State of Washington, and will provide aquatic pool design and construction services under this Agreement for MLK Jr Community Park Pool Design on behalf of the City of Yakima, RFD No. 12214Q, herein referred to as the "PROJECT." WITNESSETH: RECITALS WHEREAS, CITY desires to retain the ARCHITECT to provide Architecture services for design and construction of the PROJECT, as described in this Agreement and subsequent Amendments thereto; and WHEREAS, ARCHITECT represents that it has available and offers to provide personnel with knowledge and experience necessary to satisfactorily accomplish the work within the required time and that it has no conflicts of interest prohibited by law from entering into this Agreement; NOW, THEREFORE, CITY and ARCHITECT agree as follows: SECTION 1 INCORPORATION OF RECITALS 1.1 The above recitals are incorporated into these operative provisions of the Agreement. SECTION 2 SCOPE OF SERVICES 2.0.1 ARCHITECT agrees to perform those services described hereafter. Unless modified in writing by both parties, duties of ARCHITECT shall not be construed to exceed those services specifically set forth herein. 2.0.2 ARCHITECT shall use its best efforts to maintain continuity in personnel and shall assign, Keith Comes as Principal -in -Charge throughout the term of this Agreement unless other personnel are approved by the CITY. 2.1 Basic and Supplemental Services: ARCHITECT agrees to perform those tasks described in Exhibit A, entitled "Scope of Work Proposal" (WORK) which is attached hereto and made a part of this Agreement as if fully set forth herein. 2.2 Additional Services: CITY and ARCHITECT agree that not all WORK to be performed by ARCHITECT can be defined in detail at the time this Agreement is executed, and that additional WORK related to the Project and not covered in Exhibit A may be needed during performance of this Agreement. CITY may, at any time, by written order, direct the ARCHITECT to revise portions of the PROJECT WORK previously completed in a satisfactory manner, delete portions of the PROJECT, or request that the ARCHITECT perform additional WORK beyond the scope of the PROJECT WORK. Such changes hereinafter shall be referred to as "Additional Services," 2.2.1 If such Additional Services cause an increase or decrease in the ARCHITECT'S cost of, or time required for, performance of any services under this Agreement, a contract price Agreement 12214Q Page 1 of 27 and/or completion time adjustment pursuant to this Agreement shall be made and this Agreement shall bemodified inwriting and accepted bythe parties hereto. 222 Compensation for each such request for Additional Services shall be negotiated by the CITY and the ARCHITECT according to the provisions set forth in Exhibit A, attached hereto and incorporated herein by this reference, and if so authorized, shall be considered part ofthe PROJECT WORK. The ARCHITECT shall not perform any Additional Services until ooauthorized byCITY and agreed tobythe ARCHITECT inwriting. 2.3 The ARCHITECT must assert any claim for adjustment in writing within thirty (30) days from the date of the ARCH|TECTnreceipt of the written notification ofchange. SECTION 3 TERM 31. The bann for this AGREEMENT shall be from the data of signature of both parties through December 31.2O25. SECTION 4 CA7Y'S RESPONSIBILITIES (see also ARTICLE 5mf EXHIBIT A) 4.1 CITY -FURNISHED DATA: The CITY will provide to the ARCHITECT all technical data in the CITY'S possession relating to the ARCHITECT'S services on the PROJECT including information on any pre-existing conditions known to the CITY that constitute hazardous waste contamination onthe PROJECT site oodetermined byonauthorized regulatory agency. 4.2 ACCESS TO FACILITIES AND PROPERTY: The CITY will make its facilities reasonably accessible toARCHITECT as required for ARCHITECT'S performance of its aen/inao and will provide labor and safety equipment as reasonably required by ARCHITECT for such access. 4.3 TIMELY REVIEW: The CITY will examine the ARCHITECT'S studies, reports, sketches, drawings, specifications, proposals, and other documents; obtain advice of an attorney, insurance counselor, a000untmnt, ouditor, bond and financial mdvimorm, and other consultants as CITY deems appropriate; and render in writing decisions required of CITY in a timely manner. Such examinations and decioions, hovvawnr, shall not relieve the ARCHITECT of any contractual obligations nor of its duty to render professional services meeting the standards of care applicable to its profession. 4.4 CITY shall appoint CITY'S Representative with respect to WORK to be performed under this Agreement. C|TY'S Representative shall have complete authority bztransmit instructions and receive information. ARCHITECT shall baentitled boreasonably rely nnsuch instructions made bv theC|TY'S Representative unless otherwise directed in writing by the CITY, but ARCHITECT shall beresponsible for bringing tothe attention ofthe C|TY'S Representative any instructions which the ARCHITECT believes are inodoquobe, inoomp|ate, or inaccurate based upon the ARCHITECT'S knowledge. 4.5 Any documents, nemioao.ondnaportopnovkdedbvthe[;|TYboUlmARCH|TECToneavei|eb|aso|e|y as additional information to the ARCHITECT and will not relieve the ARCHITECT of its professional duties and obligations under this Agreement orot |oxv The ARCHITECT shall be entitled to reasonably rely upon the accuracy and the completeness of such documents, services and reports, but mho|| be responsible for exercising customary professional oona in using and reviewing such documents, services, and reports and drawing conclusions from them. SECTION 5 AUTHORIZATION, PROGRESS, AND COMPLETION 5.1 In CITY and ARCHITECT agree that at such time as the CITY provides ARCHITECT specific written authorization to proceed with one or more of the tasks described in EXHIBIT A, ARCHITECT shall begin work. The time for completion of each task shall be as mutually agreed. Agreement 12214O Page 2of27 SECTION 6 COMPENSATION 6.1 COMPENSATION: For the services described in Exhibit A, compensation shall be for the percentage of completion of the STIPULATED SUM and on a TIME SPENT BASIS AT SPECIFIC HOURLY RATES, both according to Exhibit B. Exhibit C — Schedule of Specific Hourly Rates, attached hereto and incorporated herein by this reference, identifies hourly rates for the ARCHITECT for WORK completed on a time spent basis. Exhibit B includes an estimate of direct non -salary expenses. 6.1.1 DIRECT NON -SALARY (REIMBURSABLE) EXPENSES: Direct Non -Salary Expenses are those costs incurred on or directly for the PROJECT including, but not limited to, necessary transportation costs, including current rates for ARCHITECT'S vehicles; meals and lodging; laboratory tests and analyses; printing, binding and reproduction charges; all costs associated with other outside nonprofessional services and facilities; special CITY - requested and PROJECT -related insurance and performance warranty costs; and other similar costs. Reimbursement for Direct Non -Salary Expenses will be on the basis of actual charges plus a reasonable markup, not to exceed ten percent (10%), and on the basis of current rates when furnished by ARCHITECT. Estimated Direct Non -Salary Expenses are shown in Exhibit B. 6.1.1.1 Travel costs, including transportation, lodging, subsistence, and incidental expenses incurred by employees of the ARCHITECT and each of the Subconsultants in connection with PROJECT WORK; provided, as follows: • That a maximum of U.S. INTERNAL REVENUE SERVICE allowed cents per mile will be paid for the operation, maintenance, and depreciation costs of company or individually owned vehicles for that portion of time they are used for PROJECT WORK. ARCHITECT, whenever possible, will use the least expensive form of ground transportation. • That reimbursement for meals inclusive of tips shall not exceed a maximum of forty dollars ($40) per day per person. This rate may be adjusted on a yearly basis. • That accommodation shall be at a reasonably priced hotel/motel. • That air travel shall be by coach class, and shall be used only when absolutely necessary. 6.1.2 Telephone charges, computer charges, in-house reproduction charges, first class postage, and FAX charges are not included in the direct expense costs, but are considered included in the Schedule of Specific Hourly Billing Rates. 6.1.3 Professional Subconsultants. Professional Subconsultants are those costs for engineering, architecture, geotechnical services and similar professional services approved by the CITY. Reimbursement for Professional Subconsultants will be on the basis of actual costs billed plus a reasonable markup, not to exceed ten percent (10%) for services provided to the CITY through this Agreement. Estimated Subconsultant costs are shown in Exhibit B. 6.2 Unless specifically authorized in writing by the CITY, the total budgetary amount for this PROJECT shall not exceed nine hundred thirty-eight thousand, four hundred thirty-three Dollars ($938,433). As indicated with Exhibit B, some services within this total budgetary also require specific authorization in writing by the CITY. The ARCHITECT shall make all reasonable efforts to complete the WORK within the budget and will keep CITY informed of progress toward that end so that the budget or WORK effort can be adjusted if found necessary. The ARCHITECT is not obligated to incur costs beyond the indicated budget, as may be adjusted, nor is the CITY obligated to pay the ARCHITECT beyond these limits. When any budget has been increased, the ARCHITECT'S excess costs expended prior to such increase will be allowable to the same extent as if such costs had been incurred after the approved increase, and provided that the City was informed in writing at the time such costs were incurred. Agreement 12214Q Page 3 of 27 6.3 The ARCHITECT shall submit to the City's Representative an invoice each month for payment for PROJECT services completed through the accounting cut-off day of the previous month. Such invoices shall be for PROJECT services and WORK performed and costs incurred prior to the date of the invoice and not covered by previously submitted invoices. The ARCHITECT shall submit with each invoice a summary of time expended on the PROJECT for the current billing period for WORK completed on a TIME SPENT basis and for a percentage of completion for the STIPULATED SUM, copies of subconsultant invoices, and any other supporting materials and details determined necessary by the City to substantiate the costs incurred. CITY will use its best efforts to pay such invoices within thirty (30) days of receipt and upon approval of the WORK done and amount billed. CITY will notify the ARCHITECT promptly if any problems are noted with the invoice. CITY may question any item in an invoice, noting to ARCHITECT the questionable item(s) and withholding payment for such item(s). The ARCHITECT may resubmit such item(s) in a subsequent invoice together with additional supporting information requested. 6.4 If payment is not made within sixty (60) days following receipt of approved invoices, interest on the unpaid balance shall accrue beginning with the sixty-first (61st) day at the rate of 1.0% per month or the maximum interest rate permitted by law, whichever is less; provided, however, that no interest shall accrue pursuant to Chapter 39.76 RCW when before the date of timely payment a notice of dispute is issued in good faith by the CITY to the ARCHITECT pursuant to the terms of RCW 39.76.020(4). 6.5 Final payment of any balance due the ARCHITECT for PROJECT services will be made within forty-five (45) days after satisfactory completion of the services required by this Agreement as evidenced by CITY's written acceptance and after such audit or verification as CITY may deem necessary, together with ARCHITECT's execution and delivery of a release of all known payment claims against CITY arising under or by virtue of this Agreement, other than such payment claims, if any, as may be specifically exempted by the ARCHITECT from the operation of the release in stated amounts to be set forth therein. 6.6 Payment for any PROJECT services and WORK shall not constitute a waiver or release by CITY of any claims, right, or remedy it may have against the ARCHITECT under this Agreement or by law, nor shall such payment constitute a waiver, remission, or discharge by CITY of any failure or fault of the ARCHITECT to satisfactorily perform the PROJECT WORK as required under this Agreement. SECTION 7 RESPONSIBILITY OF ARCHITECT (see also ARTICLE 2 of EXHIBIT A) 7.1 The ARCHITECT shall be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all plans, designs, drawings, specifications, reports, and other services furnished by the ARCHITECT under this Agreement. The ARCHITECT shall, without additional compensation, correct or review any errors, omissions, or other deficiencies in its plans, designs, drawings, specifications, reports, and other services. The ARCHITECT shall perform its WORK according to generally accepted design standards of care and consistent with achieving the PROJECT WORK within budget, on time, and in compliance with applicable laws, regulations, and permits. 7.2 CITY'S review or approval of, or payment for, any plans, drawings, designs, specifications, reports, and incidental WORK or services furnished hereunder shall not in any way relieve the ARCHITECT of responsibility for the technical adequacy, completeness, or accuracy of its WORK and the PROJECT WORK. CITY'S review, approval, or payment for any of the services shall not be construed to operate as a waiver of any rights under this Agreement or at law or any cause of action arising out of the performance of this Agreement. 7.3 In performing WORK and services hereunder, the ARCHITECT and its subcontractors, subconsultants, employees, agents, and representatives shall be acting as independent contractors and shall not be deemed or construed to be employees or agents of CITY in any manner whatsoever. The ARCHITECT shall not hold itself out as, nor claim to be, an officer or employee of CITY by reason hereof and shall not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of CITY. The ARCHITECT shall be solely responsible for any claims for wages or compensation by ARCHITECT's employees, agents, and Agreement 12214Q Page 4 of 27 representatives, including subconsultants and subcontractors, and shall save and hold CITY harmless therefrom. 7.4 INDEMNIFICATION AND HOLD HARMLESS: 7.4.1 (a) ARCHITECT shall take all necessary precautions in performing the WORK to prevent injury to persons or property. The ARCHITECT agrees to release, indemnify, defend, and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, insurers, attorneys, and volunteers from all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental proceedings arising from or in connection with this Agreement or the negligent acts, failures to act, errors or omissions of the ARCHITECT, or any of ARCHITECT's agent(s) or subcontractor(s), in performance of this Agreement, except for claims caused by the City's sole negligence. The City's right to indemnification includes attorney's fees and costs associated with establishing the right to indemnification hereunder in favor of the City. (b) CITY agrees to release, indemnify, defend and hold ARCHITECT, its officers, employees, representatives, agents, and subcontractors harmless from any and all liabilities, losses, damages, and expenses related to all claims, suits, arbitration actions, investigations, and regulatory or other governmental proceedings arising from or in connection with this Agreement to the extent solely caused by the negligent acts, errors, or omissions of the CITY. 7.4.2 Industrial Insurance Act Waiver. It is specifically and expressly understood that the ARCHITECT waives any immunity that may be granted to it under the Washington State industrial insurance act, Title 51 RCW, solely for the purposes of this indemnification. ARCHITECT's indemnification shall not be limited in any way by any limitation on the amount of damages, compensation or benefits payable to or by any third party under workers' compensation acts, disability benefit acts or any other benefits acts or programs. ARCHITECT shall require that its subcontractors, and anyone directly or indirectly employed or hired by ARCHITECT, and anyone for whose acts ARCHITECT may be liable in connection with its performance of this Agreement, comply with the terms of this paragraph, waive any immunity granted under Title 51. RCW, and assume all potential liability for actions brought by their respective employees. The Parties acknowledge that they have mutually negotiated this waiver. 7.4.3 Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the ARCHITECT and the City, the ARCHITECT's liability, including the duty and cost to defend, shall be only to the extent of the ARCHITECT's negligence. 7.4.4 Nothing contained in this Section or this Agreement shall be construed to create a liability or a right of indemnification in any third party. 7.4.5 The terms of this Section shall survive any expiration or termination of this Agreement. 7.5 In any and all claims by an employee of the ARCHITECT, any subcontractor, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the indemnification obligations under this Agreement shall not be limited in any way by any limitation on the amount or types of damages, compensation, or benefits payable by or for the ARCHITECT or a subcontractor under workers' or workmens' compensation acts, disability benefit acts, or other employee benefit acts. The ARCHITECT specifically and expressly waives its immunity under the Industrial Insurance Act, Title 51, RCW. Such waiver has been mutually negotiated by the ARCHITECT and the CITY. 7.6 It is understood that any inspection provided by ARCHITECT is for the purpose of determining compliance with the technical provisions of PROJECT specifications and does not constitute any form of guarantee or insurance with respect to the performance of a contractor. ARCHITECT does not assume responsibility for methods or appliances used by a contractor, for a contractor's safety programs or methods, or for contractors' compliance with laws and regulations. CITY shall use its best efforts to ensure that the construction contract requires that the contractor(s) indemnify and name CITY, the CITY's and the ARCHITECT's officers, principals, employees, agents, representatives, and engineers as additional insureds on contractor's insurance policies covering PROJECT, exclusive of insurance for ARCHITECT professional liability. Agreement 12214Q Page 5 of 27 7.7 ARCHITECT shall besolely responsible for and shall pay all taxes, deductions, and assessments, including but not limited to federal income ton. F|CA, aono| security tax, assessments for unemployment and industrial injury inaunonce, and other deductions from income which may be required by law or maeaeomd against either party as m mnoub of this Agreement. In the event the City is moemaomd m tax or meomoanment as a result ofthis Agmoennmnt. ARCHITECT mhmU pay the same before itbecomes due. 7.8 SUBSURFACE INVESTIGATIONS: In ooi|a, foundmtion, groundwater, and other subsurface investigations, the actual characteristics may vary significantly between successive test points and sample inb*n/m|o and at locations other than vvhape obeenaat|on, enp|oraUmn, and investigations have been made. Because mfthe inherent uncertainties insubsurface evaluations, changed or unanticipated underground conditions may occur that could affect total PROJECT cost and/or execution. These conditions and cost/execution effects are not the responsibility of the ARCH|TECT, to the extent that ARCHITECT has exercised the applicable and appropriate standard of professional care, thoroughness and judgment in performing such investigations. SECTION 8 PROJECT SCHEDULE AND BUDGET 8.1 The general PROJECT schedule and the budget for both the entire PROJECT and its component tasks ohm| be as set forth in this Agreement and attached Exhibits. The project schedule and performance dates for the individual tasks ahm|| be mutually ognaod to by the CITY and the ARCHITECT within fifteen (15) days after execution of this AonaamnanL The performance dates and budgets for tasks may be modified only upon written agreement of the parties hereto. The performance date for tasks and the completion date for the entire PROJECT shall not be extended, nor the budget increased because of any unwarranted delays attributable to the ARCHITECT, but may be extended or increased by the CITY in the event of delay caused by special services requested by the CITY or because of unavoidable delay omuaod by any governmental action or other conditions beyond the control of the ARCHITECT which could not be reasonably anticipated or avoided. 8.2 Not later than the tenth (1 Oth) day of each calendar month during the performance of the PROJECT, the ARCHITECT shall submit tothe C|TY'sRepresentative acopy ofthe current schedule and o vvh#en narrative description of the WORK accomplished by the ARCHITECT and oubuonou|tanto on each task, indicating a good faith estimate of the percentage completion thereof on the last day ofthe previous month. Additional oral orwritten reports shall beprepared atthe C|TY'orequest for presentation to other governmental agencies and/or to the public as an Additional Service. SECTION REUSE OF DOCUMENTS 91 All internal WORK products of the ARCHITECT are instruments or omnvioeo of this PROJECT. There shall be no reuse, change, or alteration by the CITY or others acting through or on behalf of the CITY without written permission of the ARCHITECT, which shall not be unreasonably withheld and will beodthe C|TY'osole risk. The CITY agrees toindemnify the ARCHITECT and its officers, employees, subcontractors, and affiliated corporations from all claims, damages, losses, and costs including, but not limited to, litigation expenses and attorney's fees arising out of or related to such unauthorized neuem, chmnge, or alteration; provided, however. that the ARCHITECT will not be indemnified for such claims, domm0eo. |oomaa, and costs including, without limitation, litigation expenses and attorney fees ifthey were caused by the AFlCH|TECT'e own negligent acts or omissions. 9.2 The ARCHITECT agrees that any and all plane, drawings, designs, specifications, computer programs, technical reports, operating manuals, calculations, notes, and other WORK submitted or which are specified to be delivered under this Agreement or which are developed or produced and paid for under this Agreement, whether or not complete, shall be owned by and vested in the 9.3 All rights topatents, trademarks, copyrights, andtnadmomcrmt owned bvARCHITECT (hereinafter "Intellectual Pnopmrb/)mowell as any modifications, updates orenhancements bo said Intellectual Property during the performance of the WORK remain the property of ARCHITECT, and ARCHITECT does not grant CITY any right mrlicense tosuch Intellectual Pnoperty� Agnoemont12214D - Page 6of27 SECTION 10 AUDIT AND ACCESS TO RECORDS 10.1 The ARCHITECT, including its subconsultants, shall maintain books, records, documents and other evidence directly pertinent to performance of the WORK under this Agreement in accordance with generally accepted accounting principles and practices consistently applied. The CITY, or the CITY's duly authorized representative, shall have access to such books, records, documents, and other evidence for inspection, audit, and copying for a period of three years after completion of the PROJECT. The CITY shall also have access to such books, records, and documents during the performance of the PROJECT WORK, if deemed necessary by the CITY, to verify the ARCHITECT's WORK and invoices. 10.2 Audits conducted pursuant to this section shall be in accordance with generally accepted auditing standards and established procedures and guidelines of the reviewing or auditing agency. 10.3 The ARCHITECT agrees to the disclosure of all information and reports resulting from access to records pursuant to this section provided that the ARCHITECT is afforded the opportunity for an audit exit conference and an opportunity to comment and submit any supporting documentation on the pertinent portions of the draft audit report and that the final audit report will include ARCHITECT's written comments, if any. 10.4 The ARCHITECT shall ensure that the foregoing paragraphs are included in each subcontract for WORK on the Project. 10.5 Any charges of the ARCHITECT paid by the CITY which are found by an audit to be inadequately substantiated shall be reimbursed to the CITY. SECTION 11 INSURANCE At all times during performance of the WORK or obligations under this Agreement, ARCHITECT shall secure and maintain in effect insurance to protect the CITY and the ARCHITECT from and against all claims, damages, losses, and expenses arising out of or resulting from the performance of this Agreement. ARCHITECT shall provide and maintain in force insurance in limits no less than those stated below, as applicable. The CITY reserves the right to require higher limits should it deem it necessary in the best interest of the public. If ARCHITECT carries higher coverage limits than the limits stated below, such higher limits shall be shown on the Certificate of Insurance and Endorsements and ARCHITECT shall be named as an additional insured for such higher limits. Failure by the City to demand such verification of coverage with these insurance requirements or failure of the City to identify a deficiency from the insurance documentation provided shall not be construed as a waiver of ARCHITECT's obligation to maintain such insurance. ARCHITECT's insurance coverage shall be primary insurance with respect to those who are Additional Insureds under this Agreement. Any insurance, self-insurance or insurance pool coverage maintained by the City shall be in excess of the ARCHITECT's insurance and neither the City nor its insurance providers shall contribute to any settlements, defense costs, or other payments made by ARCHITECT's insurance. Commercial General Liability Insurance. Before this Agreement is fully executed by the parties, ARCHITECT shall provide the CITY with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total liability limit of the limits required in the policy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000.00) general aggregate. The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name the CITY, its elected and appointed officials, officers, agents, employees, and volunteers as additional insureds. The insured shall not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted in the State of Washington. Agreement 12214Q Page 7 of 27 111.2. Commercial Automobile Liability Insurance. o. IfARCHITECT owns any vehicles, before this Agreement is fully executed by the porUam. ARCHITECT shall provide the CITY with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total |imbUib/ limit of the limits required in the po|icy, subject to minimum limits of Two Million Dollars ($2.000.000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to"Any Auto" and bmshown onthe b. If ARCHITECT does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits morequired inthat section ofthis Agreement, which is Section 11.1.1 entitled "Commercial General Liability Insurance". C. Under either situation described above |nSection 11.1.3.o.and Section 11.1.2.b, the required certificate of insurance shall clearly state who the provider is, the coverage amnount, the policy number, and when the policy and provisions provided are in effect. Said policy shall bmineffect for the duration ofthis Agreement. The policy shall name the C|TY, its elected and appointed officim|e, mfficoro, mAento, mmnp|oyemm, and volunteers moadditional insureds. The insured shall not cancel orchange the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A-VII or higher in Best's Guide and admitted inthe State ofWashington. 111.3. Statutory workers' compensation and employer's liability insurance as required by state 11.1.4. Professional Liability Coverage. Before this Contract iafully executed bythe parties, ARCHITECT shall provide the City with a certificate of insurance as proof of professional liability coverage with m bdm| liability limit of the |imndo required in the poUcy, subject to minimum limits of Two Million Dollars ($2,000,000.00) per claim, and Two Million Dollars ($2,]00,000.00) aggregate. The certificate shall o|mady state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall bmineffect for the duration ofthis Contract. The insured shall not cancel or change the insurance without first giving the CITY thirty (30) calendar days prior written notice. The insurance mhoU be with an insurance company orcompanies rated A-Vil or higher in Best's Guide. If the policy is written on a claims made basis the coverage will continue in force for an additional two years after the completion of this contract. Failure ofeither or all ofthe additional insureds to report mclaim under such insurance shall not prejudice the rights of the C|TY, its elected and appointed officiaka, officers, employees, agents, and representatives there under. The CITY and the C|TY'oelected and appointed officials, officers, principals, employees, representatives, and agents shall have no obligation for payment of premiums because of being named as additional insureds under such insurance. None ofthe policies issued pursuant tothe requirements contained herein shall be manmm|md, a||mvxmd to mxpire, or changed in any manner that affects the rights of the CITY until thirty (30) days after written notice to the CITY of such intended cancellation, expiration orchange. 11.2 Ifsdany time during the life ofthe Agreement, mrany extension, ARCHITECT fails to maintain the required insurance in full forme and effect, all work under the Agreement shall be discontinued immediately. Any failure to maintain the required insurance may be sufficient cause for the City to terminate the Agreement. SECTION12 SUBCONTRACTS 121 ARCHITECT shall be entitled, to the extent determined appropriate by ARCHITECT, to subcontract any portion ofthe WORK tobmperformed under this Agreement. However, ARCHITECT shall be AQnuemant12214] Page 0of27 considered the Prime Contractor hereunder and shall be the sole point of contact with regard to all contractual matters arising hereunder, including the performance of WORK and payment of any and all charges resulting from contractual obligations. 12.2 Any subconsultants or subcontractors to the ARCHITECT utilized on this PROJECT, including any substitutions thereof, will be subject to prior approval by CITY, which approval shall not be unreasonably withheld. Each subcontract shall be subject to review by the CITY's Representative, if requested, prior to the subconsultant or subcontractor proceeding with the WORK. Such review shall not constitute an approval as to the legal form or content of such subcontract. The ARCHITECT shall be responsible for the performance, acts, and omissions of all persons and firms performing subcontract WORK. 12.3 CITY does anticipate ARCHITECT subcontracting with any additional persons or firms for the purpose of completing this Agreement. 12.4 The ARCHITECT shall submit, along with its monthly invoices, copies of all invoices for all WORK completed by subconsultants and subcontractors during the preceding month. 12.5 If dissatisfied with the background, performance, and/or general methodologies of any subcontractor, the City may request in writing that the subcontractor be removed. The ARCHITECT shall comply with this request at once and shall not employ the subcontractor for any further WORK under this Agreement. SECTION 13 ASSIGNMENT 13.1 This Agreement is binding on the heirs, successors and assigns of the parties hereto. This Agreement may not be assigned by CITY or ARCHITECT without prior written consent of the other, which consent will not be unreasonably withheld. The ARCHITECT for itself and its heirs, executors, administrators, successors and assigns, does hereby agree to the full performance of all of the covenants herein contained upon the part of the ARCHITECT. It is expressly intended and agreed that no third party beneficiaries are created by this Agreement, and that the rights and remedies provided herein shall inure only to the benefit of the parties to this Agreement. SECTION 14 INTEGRATION 14.1 This Agreement represents the entire understanding of CITY and ARCHITECT as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered herein. This Agreement may not be modified or altered except in writing signed by both parties. SECTION 15 JURISDICTION AND VENUE 15.1 This Agreement shall be administered and interpreted under the laws of the State of Washington. Jurisdiction of litigation arising from this Agreement shall be in Washington State. If any part of this Agreement is found to conflict with applicable laws, such part shall be inoperative, null, and void insofar as it conflicts with said laws, but the remainder of this Agreement shall be in full force and effect. Venue for all disputes arising under this Agreement shall lie in a court of competent jurisdiction in Yakima County, Washington. SECTION 16 EQUAL EMPLOYMENT and NONDISCRIMINATION 16.1 During the performance of this Agreement, ARCHITECT and ARCHITECT's subconsultants and subcontractors shall not discriminate in violation of any applicable federal, state and/or local law or regulation on the basis of age, sex, race, creed, religion, color, national origin, marital status, disability, honorably discharged veteran or military status, pregnancy, sexual orientation, and any other classification protected under federal, state, or local law. This provision shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment, advertising, layoff or termination, rates of pay or other forms of compensation, selection for training, and the provision of services under this Agreement. ARCHITECT agrees to comply with the applicable provisions of State and Federal Equal Employment Opportunity and Nondiscrimination statutes and regulations. Agreement 12214Q Page 9 of 27 SECTION 17 SUSPENSION OF WORK 17.1 CITY may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond CITY's control are interfering with normal progress of the WORK. ARCHITECT may suspend, in writing by certified mail, all or a portion of the WORK under this Agreement if unforeseen circumstances beyond ARCHITECT's control are interfering with normal progress of the WORK. ARCHITECT may suspend WORK on the PROJECT in the event CITY does not pay invoices when due, except where otherwise provided by this Agreement. The time for completion of the WORK shall be extended by the number of days WORK is suspended. If the period of suspension exceeds ninety (90) days, the terms of this Agreement are subject to renegotiation, and both parties are granted the option to terminate WORK on the suspended portion of Project in accordance with SECTION 17. SECTION 18 TERMINATION OF WORK 18.1 Either party may terminate this Agreement, in whole or in part, if the other party materially breaches its obligations under this Agreement and is in default through no fault of the terminating party. However, no such termination may be effected unless the other party is given: (1) not less than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of intent to terminate; and (2) an opportunity for consultation and for cure with the terminating party before termination. Notice shall be considered issued within seventy-two (72) hours of mailing by certified mail to the place of business of either party as set forth in this Agreement. 18.2 In addition to termination under subsection 17.1 of this Section, CITY may terminate this Agreement for its convenience, in whole or in part, provided the ARCHITECT is given: (1) not less than fifteen (15) calendar days written notice delivered by certified mail, return receipt requested, of intent to terminate; and (2) an opportunity for consultation with CITY before the effective termination date. 18.3 If CITY terminates for default on the part of the ARCHITECT, an adjustment in the contract price pursuant to the Agreement shall be made, but (1) no amount shall be allowed for anticipated profit on unperformed services or other WORK, and (2) any payment due to the ARCHITECT at the time of termination may be adjusted to the extent of any additional costs or damages CITY has incurred, or is likely to incur, because of the ARCHITECTS breach. In such event, CITY shall consider the amount of WORK originally required which was satisfactorily completed to date of termination, whether that WORK is in a form or of a type which is usable and suitable to CITY at the date of termination and the cost to CITY of completing the WORK itself or of employing another firm to complete it. Under no circumstances shall payments made under this provision exceed the contract price. In the event of default, the ARCHITECT agrees to pay CITY for any and all damages, costs, and expenses whether directly, indirectly, or consequentially caused by said default. This provision shall not preclude CITY from filing claims and/or commencing litigation to secure compensation for damages incurred beyond that covered by contract retainage or other withheld payments. 18.4 If the ARCHITECT terminates for default on the part of CITY or if CITY terminates for convenience, the adjustment pursuant to the Agreement shall include payment for services satisfactorily performed to the date of termination, in addition to termination settlement costs the ARCHITECT reasonably incurs relating to commitments which had become firm before the termination, unless CITY determines to assume said commitments. 18.5 Upon receipt of a termination notice under subsections 18.1 or 18.2 above, the ARCHITECT shall (1) promptly discontinue all services affected (unless the notice directs otherwise), and (2) deliver or otherwise make available to CITY all originals of data, drawings, specifications, calculations, reports, estimates, summaries, and such other information, documents, and materials as the ARCHITECT or its subconsultants may have accumulated or prepared in performing this Agreement, whether completed or in progress, with the ARCHITECT retaining copies of the same. 18.6 Upon termination under any subparagraph above, CITY reserves the right to prosecute the WORK to completion utilizing other qualified firms or individuals; provided, the ARCHITECT shall have no responsibility to prosecute further WORK thereon. Agreement 12214Q Page 10 of 27 187 If, after termination for failure of the ARCHITECT to fulfill contractual obligations, it is determined that the ARCHITECT has not so failed, the termination shall be deemed to have been effected for the convenience of CITY. In such event, the adjustment pursuant to the Agreement shall be determined ooset forth insubparagraph 18.4ofthis Section. 18.8 If, because of death, unavailability or any other occurrence, it becomes impossible for any key personnel employed by the ARCHITECT in PROJECT WORK or for any corporate officer of the ARCHITECT to render his services to the PROJECT, the ARCHITECT shall not be relieved of its obligations to oomp|ah* performance under this Agreement without the concurrence and written approval of CITY. If CITY oQneoa to termination of this Agreement under this pnovioion, payment shall bemade eoset forth insubparagraph 1G.3ofthis Section. SECTION 19 DISPUTE RESOLUTION 191 |nthe event that any dispute ahaUohaamobnbhminbo nnrpedbnnanceofthiaAmraement, or in the event of a notice of default as to whether such default does constitute a breach of the contract, and if the parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation as a means to resolve the dispute. If neither of the afore mentioned methods are successful then any dispute relating to this Agreement shall be decided in the courts of Yakima County, in accordance with SECTION 14. If both parties consent in writing, other available means of dispute resolution may be implemented. SECTION 20 NOTICE 20.1 Any notice required to be given under the terms of this Agreement shall be directed to the party at the address set forth below. Notice shall be considered issued and effective upon receipt thereof by the addressee -party, or seventy-two (72) hours after mailing by certified mail to the place of business set forth below, whichever is earlier. CITY: City ofYakima 129N2n«Street Yakima, VVA88S01 Attn: Christina Payer ARCHITECT NAC Architecture 1200VVRiverside Ave Spokane, WA 88201-1107 Attn: Keith Comes SECTION21 INSPECTION AND PRODUCTION OF RECORDS 21.1 All records inall formats relating hothe WORK shall, odall times, bosubject toinspection by and with the approval of the Cib/, but the nnohin0 of (or failure or delay in making) such inspection or approval shall not relieve ARCHITECT of responsibility for performance of the WORK in accordance with this Agremrnant, notwithstanding the C\h/'a knowledge of defective or non- complying porfmrmonma, its substantiality or the ease of its discovery. ARCHITECT ahoU provide the Citvsufficient, safe, and proper baci|iUes.and/or send copies ofthe requested docunnentobnthe City.' RCH|TECT'a records relating to the WORK will be provided to the City upon the Cib/'o request. 21.2 ARCHITECT shall promptly furnish the City with such information and nyoonda which are related hothe WORK ofthis Agreement aamay bmrequested bythe City. Until the expiration of six (6) years after final payment of the compensation payable under this Agreement, orfor o longer period if required by |ovv or by the Washington Secretary of Stoto'o record retention schedule, ARCHITECT retain and provide the City access to (and the City shall have the right to exanmina, audit and copy) all ofAR[|H|TECT's booha, doounnenho, papers and records which are related to the WORK performed by ARCHITECT under this Agreement. !Prior to paper records to electronic format and/or destroving anv records, ARCHITECT shall contact CITY's Agreument12214O Page 11of27 Records Administrator,,-(509-575-6037) to discuss retention. In no event shall aqy record relg!Lng to the WORK be destroyed without CITY consultation. 21.3 All records relating to ARCHITECT's services under this Agreement must be made available to the City, and the records relating hothe WORK are City ofYakima records. They must beproduced to third parties, if required pursuant to the Washington State Public Records Act, Chapter 42.56 RCW, orbylaw. All records relating to ARCHITECT's services under this Agreement must be retained by ARCHITECT for the minimum period of time required pursuant to the Washington 8eonabery of Stoto'orecords retention schedule. 21'4 The terms of this section shall survive any expiration or termination of this Agreement. SECTION 22 COMPLIANCE WITH THE LAW 22.1 ARCHITECT agrees to perform all WORK under and pursuant to this Agreement in full compliance with any and all applicable lavvo, nu|en, and regulations adopted or promulgated by any governmental agency or regulatory Uody, whether federal, state, |000|. or otherwise, including policies adopted by the City, an those |awm, ondinanoem, ru|mo, nogu|mUono, and policies now exist or may hereafter be amended or enacted. ARCHITECT shall procure and have all applicable and nmom000ry permits, |ioonoao and approvals of any federo|, state, and local government or governmental authority orthis project, payo||chorgeeandf000.endgiveo||noUoeanocoosarymnd incidental tothe due and lawful execution ofthe work. 22.2 ARCHITECT shall procure and have all applicable and necessary permits, licenses and approvals ofany federal, state, and local government orgovernmental authority mrthis project, pmya||choDgoa and fees, and give all notices necessary and incidental to the due and lawful execution of the work. 22.2.1 Procurement ofoCity Business License. ARCHITECT must procure mCity ofYakima Business License and pay all charges, fees, and taxes associated with said license. 22.2.2 ARCHITECT must provide proof of a valid Washington department of Revenue state excise tax registration number, on required in Title 85 RCVV. 22.2.3 ARCHITECT must provide proof of a valid Washington Unified Business Identification (UBI) number. ARCHITECT must have ocurrent UB|number and not bedisqualified fnombkjdinQ onany public works contract under RCVV3S.06.1O1or38.12.OG5(3). 22.2.4 ARCHITECT must provide proof ofa valid Washington Employment Security Department number as required by Title 50 RCW. 22.3.5 Although the City does not require foreign corporate proposers to qualify in the City, County or State prior to submitting a proposal, it is n9eohioa||y understood and agreed that any such corporation will promptly take all necessary measures to become authorized to conduct business in the City of Yakima, at their own expenge, without naggnd towhether such corporation is actually ovvandmd the contnaot, and in the event that the award is made, prior to conducting any business in the SECTION 23 MISCELLANEOUS PROVISIONS 33.1 Nondiscrimination. During the performance of this Agreement, the ARCHITECT agrees as follows: The ARCHITECT shall not discriminate against any person on the grounds of race, cnamd, oo|or, no|igion, national origin, max, a0e, marital obetuo, sexual orionhyUon, gender identity, 9nagnanoy, veteran's stotuo, political affiliation or belief, or the presence of any oenoory, mental or physical handicap in violation of the Washington State Law Against Discrimination (RCW chapter 49.60) or the Americans with Disabilities Act /42USC121O1etoeq.\. This provision shall include but not bo limited bothe following: ennp|oyment, upQrodin0, demoUon, tronofor, recruitment, advertising, layoff or termination, rates ofpay orother forms ofcompensation, selection for training, and the provision of WORK under this AunoennonL In the event of the ARCH|TECT'n noncompliance with the non - Agreement 12214O Page 12of27 discrimination clause of this contract or with any such rules, regulations, or orders, this Agreement may be cancelled, terminated, or suspended in whole or in part and the ARCHITECT may be declared ineligible for any future City contracts. 23.2 Pay transparency nondiscrimination. The ARCHITECT will not discharge or in any other manner discriminate against employees or applicants because they have inquired about, discussed, or disclosed their own pay or the pay of another employee or applicant. However, employees who have access to the compensation information of other employees or applicants as a part of their essential job functions cannot disclose the pay of other employees or applicants to individuals who do not otherwise have access to compensation information, unless the disclosure is (a) in response to a formal complaint or charge, (b) in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or (c) consistent with the contractor's legal duty to furnish information. 23.3 Severability. If any term or condition of this Agreement or the application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions or applications which can be given effect without the invalid term, condition or application. To this end, the terms and conditions of this Agreement are declared severable. 23.4 Agreement documents. This Agreement, the Request for Qualifications & Proposals No. 12214Q, titled MLK Jr Community Park Pool Design Scope of Work, conditions, addenda, and modifications and ARCHITECT's proposal (to the extent consistent with Yakima City documents) constitute the Agreement Documents and are complementary. Specific Federal and State laws and the terms of this Agreement, in that order respectively, supersede other inconsistent provisions. These Agreement Documents are on file in the Office of the Purchasing Manager, 129 No. 2nd St., Yakima, WA, 98901, and are hereby incorporated by reference into this Agreement. 23.5 Notice of change in financial condition. If, during this Agreement, the ARCHITECT experiences a change in its financial condition that may affect its ability to perform under the Agreement, or experiences a change of ownership or control, the ARCHITECT shall immediately notify the City in writing. Failure to notify the City of such a change in financial condition or change of ownership or control shall be sufficient grounds for termination. 23.6 No conflicts of interest. ARCHITECT represents that it or its employees do not have any interest and shall not hereafter acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of this Agreement. ARCHITECT further covenants that it will not hire anyone or any entity having such a conflict of interest during the performance of this Agreement. 23.7 Promotional advertising prohibited. Reference to or use of the City, any of its departments, agencies or other subunits, or any official or employee for commercial promotion is prohibited. News releases pertaining to this procurement shall not be made without prior approval of the City. Release of broadcast emails pertaining to this procurement shall not be made without prior written authorization of the City. 23.8 Time is of the essence. Timely provision of the WORK required under this Agreement shall be of the essence of the Agreement, including the provision of the WORK within the time agreed or on a date specified herein. 23.9 Waiver of breach. A waiver by either party hereto of a breach of the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 23.10 Force Majeure. ARCHITECT will not be responsible for delays in delivery due to acts of God, fire, strikes, riots, delay in transportation, or those effects of epidemics or pandemics that could not have been reasonably anticipated or mitigated through acts of the ARCHITECT; provided ARCHITECT notifies the City immediately in writing of such pending or actual delay. Normally in the event of Agreement 12214Q Page 13 of 27 such delays, the date of delivery of WORK will be extended for a period of time equal to the time lost due to the reason for delay. 23.11 Authority. The person executing this Agreement on behalf of ARCHITECT represents and warrants that they have been fully authorized by ARCHITECT to execute this Agreement on its behalf and to legally bind ARCHITECT to all terms, performances, and provisions of this Agreement. 23.12 Survival. The foregoing sections of this Agreement, inclusive, shall survive the expiration or termination of this Agreement, in accordance with their terms. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective authorized officers or representatives as of the day and year first above written. CITY OF YAKIMA Signature NAC ARCHITECTURE Printed Name: Bob Harrison Printed Name: Keith M. Comes Title: City Manager Resolution: R-2023- ,1110 Contract 2023- Co") Nt4., Title: Principal Architect Date: // • 7i- Agreement 12214Q Page 14 of 27 STATE OF WASHINGTON ) ss. COUNTY OF YAKIMA I certify that I know or have satisfactory evidence that Bob Harrison is the person who appeared before me, and said person acknowledged that he signed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the CITY MANAGER of the CITY OF YAKIMA, to be the free and voluntaryact of such party for the uses and purposes mentioned in the instrument. Dated: Seal or Stamp (Signature) Title Printed Name 1 My commission expires: Agreement 12214Q Page 15 of 27 STATE OF WASHINGTON COUNTY OF YAKIMA I certify that I know or have satisfactory evidence that 4 ) Ctre e is the person who appeared before me, and said person acknowledged that he/she signed this instru nt, on path sated that he/she wa authorized to execute the instrument, and acknowledged it as the AL4-6 mitt tirc, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Seal or Stamp ..41,00$1f010#0 BA77,69 : tkOTAR Sz %CI. PUBLIC Title C„,„-bilii Oiw (Signature) -/ 1 10(1,9 1 ) Printed Name My commission expires: Agreement 12214Q Page 16 of 27 Init. t 1 1 TM 1 17 St. dard Fo of Agreement Between Owner and Architect E IBIT A- Scope of Work Proposal AGREEMENT made as of the 3 r d day ofJanuary in the year 2023 (In words, indicate day, month and year.) BETWEEN the Architect's client identified as the Owner: (Name, legal status, address and other information) City of Yakima 129 North 2nd Street Yakima, WA 98901 and the Architect: (Name, legal status, address and other information) NAC 1203 NV Riverside Avenue Spokane, WA 99201 for the following Project: (Name, location and detailed description) Martin Luther King Jr. Community Park Pool S 8th and Beech Yakima, WA 98901 The Owner and Architect agree as follows. ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original A IA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. AIA Document B1017-20 17 . Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "ALA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents° Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes; (1263284272) Init. TABLE OF ARTICLES 1 INITIAL INFORMATION 2 ARCHITECT'S RESPONSIBILITIES SCOPE OF ARCHITECT'S BASIC SERVICES SUPPLEMENTAL AND ADDITIONALSERVICES OWNER'S RESPONSIBILITIES COST OF THE WORK COPYRIGHTS AND LICENSES CLAIMS AND DISPUTES TERMINATION OR SUSPENSION MISCELLANEOUS PROVISIONS 11 COMPENSATION SPECIAL TERMS AND CONDITIONS SCOPE OF THE AGREEMENT ARTICLE 1 INITIAL INFORMATION § 1.1 This Agreement is based on the Initial Information set forth in this Section 1.1. (For each item in this section, insert the information or a statement such as "not applicable" or "unknown at time of execution.") § 1.1.1 The Owner's program for the Project: (Insert the Owner's program, identify documentation that establishes the Owner's program, or state the manner in which the program will be developed.) New City of Yakima Aquatic Center in MLK Jr. Community Park including a new (approximately 5,500 SF) poolhouse building and (approximately 7,800 SF) new outdoor recreation pool(s) and related support facilities, parking, site utilities, landscape and all site components directly related to the aquatic center. A Feasibility Study conducted by the City in 2019 established approximate areas for the poolhouse building and areas for the pool(s). The study included approximately 7800 SF of pool area for Phase 1 and an additional approximate 900 SF of pool area for Phase 2. Details of the program including area of pools and pool amenities, area and requirements of the poolhouse and site requirements will be determined during the Predesign Phase. § 1.1.2 The Project's physical characteristics: (Identify or describe pertinent information about the Project's physical characteristics, such as size; location; dimensions; geotechnical reports; site boundaries; topographic surveys; traffic and utility studies; availability of public and private utilities and services; legal description of the site, etc.) The project will be located within MLK Jr. Community Park at S 8th and Beech. The park is approximately 143,800 SF (3.30 Acres) and the center is intended to occupy the north half of the park. The specific location and layout will be determined during the Predesign and Planning Phase. § 1.1.3 The Owner's budget for the Cost of the Work, as defined in Section 6.1: AIA Document B 10l^- 20 17 , Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only he used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aiaorg. User Notcs: (1263284272) (Provide total and, if known, a line item breakdown) The Cost of the Work (MACC — Maximum Allowable Construction Cost) is $9,250,000.00, not including state sales tax. This MACC includes the pool area of Phase 1 only. The Owner's budget includes an additional $1,200,000.00 allowance, not including sales tax, to increase the MACC or for Bid Alternates above the original MACC. Written authorization by the Owner is required in order to increase the MACC using part or all of this additional allowance. § 1.1.4 The Owner's anticipated design and construction milestone dates: .1 Design phase milestone dates, if any: Design phases starting approximately on January 23, 2023 and ending approximately on October 2, 2023- 36 weeks as follows: Predesign: 8 weeks Schematic Design: 5 weeks Design Development: 8 weeks Construction Documents: 15 weeks Construction commencement date: Bidding and construction phases require written authorization by Owner prior to proceeding. Construction phase to be preceded by approximately 4-week bidding phase. Actual date of Construction commencement to be determined (dependent upon funding for that phase/activity) Substantial Completion date or dates: Approximate Substantial Completion date 10-12 months after construction commencement. Actual date of Substantial Completion to be determined. Other milestone dates: Not applicable (NA) § 1.1.5 The Owner intends the following procurement and delivery method for the Project: (Identify methodmethod such as competitive bid or negotiated contract, as well as any requirements for accelerated or fast -track design and construction, multiple bid packages, or phased construction) Competitive Bidding § 1.1.6 The Owner's anticipated Sustainable Objective for the Project: (Identij5, and describe the Owner's Sustainable Objective for the Project if any) None § 1.1.6.1 If the Owner identifies a Sustainable Objective, the Owner and Architect shall complete and incorporate AIA Document E204Tm-2017, Sustainable Projects Exhibit, into this Agreement to define the terms, conditions and services related to the Owner's Sustainable Objective. If E204-2017 is incorporated into this agreement, the Owner and Architect shall incorporate the completed E204-2017 into the agreements with the consultants and contractors performing services or Work in any way associated with the Sustainable Objective. § 1.1.7 The Owner identifies the following representative in accordance with Section 5.3: (List name, address, and other contact information.) AIA Document B101- — 2017. Copyright CD 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Init. Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. Kenneth Wilkinson City of Yakima Parks & Recreation 129 North 2nd Street Yalcirna, WA, 98901 (509) 576-6696 Kenneth.Wilkinson@yakimawa.gov § 1.1.8 The persons or entities, in addition to the Owner's representative, who are required to review the Architect's submittals to the Owner are as follows: (List name, address, and other contact information) Randy Tabert City of Yakima Parks & Recreation 129 North 2nd Street Yakima, WA, 98901 (509) 576-6696 Randy.Tabert@yakimawa.gov § 1.1.9 The Owner shall retain the following consultants and contractors: (List name, legal status, address, and other contact information.) .1 Geotechnical Engineer: None, geotechnical engineer to be retained by Architect Civil Engineer: None, civil engineer to be retained by the Architect .3 Other, if any: (List any other consultants and contractors retained by the Owner.) None § 1.1.10 The Architect identifies the following representative in accordance with Section 2.3: (List name, address, and other contact information) Keith Comes, Pnncipal-m-Charge, kcomes@nacarchitecture.com Brooke Hanley, Project Manager, bhanley@nacarchitecture.com 1203 West Riverside Avenue Spokane, WA 99201 509-838-8240 § 1.1.11 The Architect shall retain the consultants identified in Sections 1.1.11.1 and 1.1.11.2: (List name, legal status, address, and other contact information) § 1.1.11.1 Consultants retained under Basic Services: .1 Structural Engineer: Coffman Engineers 10 North Post Street, Suite 500 Spokane, WA 99201 .2 Mechanical Engineer: AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and 'AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documentso Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. L&S Engineering 216 W Pacific Avenue, Suite 211 Spokane, WA 99201 .3 Electrical Engineer: NAC Engineering 1203 West Riverside Avenue Spokane, WA 99201 § 1.1.11.2 Consultants retained under Supplemental Services: Parametrix, Civil Engineer and Surveyor MTLA Landscape, Landscape Architect Water Technology, Inc., Aquatic Consultant MACC Estimating Group, Cost Estimator GN Northern, Geotechnical Engineer § 1.1.12 Other Initial Information on which the Agreement is based: . is Predesign Phase included as a Supplemental Service to determine final program requirements, confirm layout of the new aquatic center within MLK Jr Community Park (including development of up to 3 site and aquatic amenity layouts) and to confirm that the Owner's budget is in alignment with project requirements. § 1.2 The Owner and Architect may rely on the Initial Information. Both parties, however, recognize that the Initial Information may materially change and, in that event, the Owner and the Architect shall appropriately adjust the Architect's services, schedule for the Architect's services, and the Architect's compensation. The Owner shall adjust the Owner's budget for the Cost of the Work and the Owner's anticipated design and construction milestones, as necessary, to accommodate material changes in the Initial Information. § 1.3 The parties shall agree upon protocols governing the transmission and use of Instruments of Service or any other information or documentation in digital form. The parties will use AIA Document E203174-2013, Building Information Modeling and Digital Data Exhibit, to establish the protocols for the development, use, transmission, and exchange of digital data. § 1.3.1 Any use of, or reliance on, all or a portion of a building information model without agreement to protocols governmg the use of, and reliance on, the information contained in the model and without having those protocols set forth in AIA Document E203Tm-2013, Building Information Modeling and Digital Data Exhibit, and the requisite AIA Document G202Tm-2013, Project Building Information Modeling Protocol Form, shall be at the using or relying party's sole risk and without liability to the other party and its contractors or consultants, the authors of, or contributors to, the building information model, and each of their agents and employees. ARTICLE 2 ARCHITECT'S RESPONSIBILITIES (see also SECTION 7 of the prime Agreement for Professional Services) § 2.1 The Architect shall provide professional services as set forth in this Agreement. The Architect represents that it is properly licensed in the jurisdiction where the Project is located to provide the services required by this Agreement, or shall cause such services to be performed by appropriately licensed design professionals. § 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents° Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project. § 2.3 The Architect shall identify a representative authorized to act on behalf of the Architect with respect to the Project. § 2.4 Except with the Owner's knowledge and consent, the Architect shall not engage in any activity, or accept any employment, interest or contribution that would reasonably appear to compromise the Architect's professional judgment with respect to this Project. (Paragraphs deleted) ARTICLE 3 SCOPE OF ARCHITECT'S BASIC SERVICES § 3.1 The Architect's Basic Services consist of those described in this Article 3 and include usual and customary structural, mechanical, and electrical engineering services. Services not set forth in this Article 3 are Supplemental or Additional Services. § 3.1.1 The Architect shall manage the Architect's services, research applicable design criteria, attend Project meetings, communicate with members of the Project team, and report progress to the Owner. § 3.1.2 The Architect shall coordinate its services with those services provided by the Owner and the Owner's consultants. The Architect shall be entitled to rely on, and shall not be responsible for, the accuracy, completeness, and timeliness of, services and information furnished by the Owner and the Owner's consultants. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any error, omission, or inconsistency in such services or information. § 3.1.3 As soon as practicable after the date of this Agreement, the Architect shall submit for the Owner's approval a schedule for the performance of the Architect's services. The schedule initially shall include anticipated dates for the commencement of construction and for Substantial Completion of the Work as set forth in the Initial Information. The schedule shall include allowances for periods of time required for the Owner's review, for the performance of the Owner's consultants, and for approval of submissions by authorities having jurisdiction over the Project. Once approved by the Owner, time limits established by the schedule shall not, except for reasonable cause, be exceeded by the Architect or Owner. With the Owner's approval, the Architect shall adjust the schedule, if necessary, as the Project proceeds until the commencement of construction. § 3.1.4 The Architect shall not be responsible for an Owner's directive or substitution, or for the Owner's acceptance of non -conforming Work, made or given without the Architect's written approval. § 3.1.5 The Architect shall contact governmental authorities required to approve the Construction Documents. The Architect shall respond to applicable design requirements imposed by those authorities. § 3.1.6 The Architect shall assist the Owner in connection with the Owner's responsibility for filing documents required for the approval of governmental authorities having jurisdiction over the Project. § 3.2 Schematic Design Phase Services § 3.2.1 The Architect shall review the program and other information furnished by the Owner, and shall review laws, codes, and regulations applicable to the Architect's services. § 3.2.2 The Architect shall prepare a preliminary evaluation of the Owner's program, schedule, budget for the Cost of the Work, Project site, the proposed procurement and delivery method, and other Initial Information, each in terms of the other, to ascertain the requirements of the Project. The Architect shall notify the Owner of (1) any inconsistencies discovered in the information, and (2) other information or consulting services that may be reasonably needed for the Project. § 3.2.3 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project. The Architect shall reach an understanding with the Owner regarding the requirements of the Project. AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Init. Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission, This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) § 3.2.4 Based on the Project requirements agreed upon with the Owner, the Architect shall prepare and present, for the Owner's approval, a preliminary design illustrating the scale and relationship of the Project components. § 3.2.5 Based on the Owner's approval of the preliminary design, the Architect shall prepare Schematic Design Documents for the Owner's approval. The Schematic Design Documents shall consist of drawings and other documents including a site plan, if appropriate, and preliminary building plans, sections and elevations; and may include some combination of study models, perspective sketches, or digital representations. Preliminary selections of major building systems and construction materials shall be noted on the drawings or described in writing. Init. § 3.2.5.1 The Architect shall consider sustainable design altematives, such as material choices and building onentation, together with other considerations based on program and aesthetics, in developing a design that is consistent with the Owner's program, schedule and budget for the Cost of the Work. The Owner may obtain more advanced sustainable design services as a Supplemental Service under Section 4.1.1. § 3.2.5.2 The Architect shall consider the value of alternative materials, building systems and equipment, together with other considerations based on program and aesthetics, in developing a design for the Project that is consistent with the Owner's program, schedule, and budget for the Cost of the Work. § 3.2.6 The Architect shall review with the Owner an estimate of the Cost of the Work prepared in accordance with Section 6.3. § 3.2.7 The Architect shall submit the Schematic Design Documents to the Owner, and request the Owner's approval. § 3.3 Design Development Phase Services § 3.3.1 Based on the Owner's approval of the Schematic Design Documents, and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Design Development Documents for the Owner's approval. The Design Development Documents shall illustrate and describe the development of the approved Schematic Design Documents and shall consist of drawings and other documents including plans, sections, elevations, typical construction details, and diagrammatic layouts of building systems to fix . . and descnbe the size and character of the Project as to architectural, structural, mechanical and electrical systems, and other appropriate elements. The Design Development Documents shall also include outline specifications that identify major materials and systems and establish, in general, their quality levels. § 3.3.2 The Architect shall review with the Owner an update of the estimate of the Cost of the Work prepared in accordance with Section 6.3. . . § 3.3.3 The Architect shall submit the Design Development Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work, and request the Owner's approval. § 3.4 Construction Documents Phase Services § 3.4.1 Based on the Owner's approval of the Design Development Documents, and on the Owner's authorization of any adjustments in the Project requirements and the budget for the Cost of the Work, the Architect shall prepare Construction Documents for the Owner's approval. The Construction Documents shall illustrate and describe the further development of the approved Design Development Documents and shall consist of Drawings and Specifications setting forth in detail the quality levels and performance criteria of materials and systems and other requirements for the construction of the Work. The Owner and Architect acknowledge that, in order to perform the Work, the Contractor will provide additional information, including Shop Drawings, Product Data, Samples and other similar submittals, which the Architect shall review in accordance with Section 3.6.4. § 3.4.2 The Architect shall incorporate the design requirements of governmental authorities having jurisdiction over the Project into the Construction Documents. § 3.4.3 During the development of the Construction Documents, the Architect shall assist the Owner in the development and preparation of (1) procurement information that describes the time, place, and conditions of bidding, including bidding or proposal forms; (2) the form of agreement between the Owner and Contractor; and (3) the AIA Document B101- — 2017. Copyright© 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. Conditions of the Contract for Construction (General, Supplementary and other Conditions). The Architect shall also compile a project manual that includes the Conditions of the Contract for Construction and Specifications, and may include bidding requirements and sample forms. § 3.4.4 The Architect shall review with the Owner an update of the estimate for the Cost of the Work prepared in accordance with Section 6.3. § 3.4.5 The Architect shall submit the Construction Documents to the Owner, advise the Owner of any adjustments to the estimate of the Cost of the Work, take any action required under Section 6.5, and request the Owner's approval. § 3.5 Procurement Phase Services (requires prior written authorization by the City to proceed) § 3.5.1 General The Architect shall assist the Owner in establishing a list of prospective contractors. Following the Owner's approval of the Construction Documents, the Architect shall assist the Owner in (1) obtaining either competitive bids or negotiated proposals; (2) confirming responsiveness of bids or proposals; (3) determining the successful bid or proposal, if any; and, (4) awarding and preparing contracts for construction. § 3.5.2 Competitive Bidding (requires prior written authorization by the City to proceed) § 3.5.2.1 Bidding Documents shall consist of bidding requirements and proposed Contract Documents. § 3.5.2.2 The Architect shall assist the Owner in bidding the Project by: .1 facilitating the distribution of Bidding Documents to prospective bidders; .2 organizing and conducting a pre -bid conference for prospective bidders; preparing responses to questions from prospective bidders and providing clarifications and interpretations of the Bidding Documents to the prospective bidders in the form of addenda; and, organizing and conducting the opening of the bids, and subsequently documenting and distributing the bidding results, as directed by the Owner. § 3.5.2.3 If the Bidding Documents permit substitutions, upon the Owner's written authorization, the Architect shall, as an Additional Service, consider requests for substitutions and prepare and distribute addenda identifying approved substitutions to all prospective bidders. (Paragraphs deleted) § 3.6 Construction Phase Services (requires prior written authorization by the City to proceed) § 3.6.1 General § 3.6.1.1 The Architect shall provide administration of the Contract between the Owner and the Contractor as set forth below and in AIA Document A201TM_2017, General Conditions of the Contract for Construction. If the Owner and Contractor modify AIA Document A201-2017, those modifications shall not affect the Architect's services under this Agreement unless the Owner and the Architect amend this Agreement. § 3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Architect shall not have control over,; charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for the Architect's negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work. § 3.6.1.3 Subject to Section 4.2 and except as provided in Section 3.6.6.5, the Architect's responsibility to provide Construction Phase Services commences with the award of the Contract for Construction and terminates on the date the Architect issues the final Certificate for Payment. AIA Document B101'" — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission, This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org, User Notes: (1263284272) Init. § 3.6.2 Evaluations of the Work § 3.6.2.1 The Architect shall visit the site at intervals appropriate to the stage of construction, or as otherwise required in Section 4.2.3, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect shall not be required to make exhaustive or continuous on -site observations or any inspections to check the quality or quantity of the Work. On the basis of the site visits, the Architect shall keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and promptly report to the Owner (1) known deviations from the Contract Documents, (2) known deviations from the most recent construction schedule submitted by the Contractor, and (3) defects and deficiencies observed in the Work. § 3.6.2.2 The Architect will consult with the Owner concerning whether to reject Work that does not conform to the Contract Documents that comes to the attention of the Architect. Whenever the Architect considers it necessary or advisable, the Architect shall have the authority to require inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not the Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, suppliers, their agents or employees, or other persons or entities performing portions of the Work. § 3.6.2.3 The Architect shall interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed upon or otherwise with reasonable promptness. § 3.6.2.4 Interpretations and recommendations of the Architect shall be consistent with the intent of, and reasonably inferable from, the Contract Documents and shall be in writing or in the form of drawings. When making such interpretations and recommendations, the Architect shall endeavor to secure faithful performance by both Owner and Contactor, shall not show partiality to either, and shall not be liable for results of interpretations or recommendations rendered in good faith. The Architect and Qwner will review matters relating to aesthetic effect and the Owner will make any final decisions on these matters with the intent expressed in the Contract Documents. § 3.6.2.5 Unless the Owner and Contractor designate another person to serve as an Initial Decision Maker, as that term is defined in AIA Document A201-2017, the Architect shall render initial decisions on Claims between the Owner and Contractor as provided in the Contract Documents. § 3.6.3 Certificates for Payment to Contractor § 3.6.3.1 The Architect shall review and certify the amounts due the Contractor and shall issue certificates in such amounts. The Architect's certification for payment shall constitute a representation to the Owner, based on the Architect's evaluation of the Work as provided in Section 3.6.2 and on the data comprising the Contractor's Application for Payment, that, to the best of the Architect's knowledge, information and belief, the Work has progressed to the point indicated, the quality of the Work is in accordance with the Contract Documents, and that the Contractor is entitled to payment in the amount certified. The foregoing representations are subject to (1) an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, (2) results of subsequent tests and inspections, (3) correction of minor deviations from the Contract Documents prior to completion, and (4) specific qualifications expressed by the Architect. § 3.6.3.2 The issuance of a Certificate for Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on -site observations or any inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. § 3.6.3.3 The Architect shall maintain a record of the Applications and Certificates for Payment. AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Oocuments® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) § 3.6.4 Submittals § 3.6.4.1 The Architect shall review the Contractor's submittal schedule and shall not unreasonably delay or withhold approval of the schedule. The Architect's action in reviewing submittals shall be taken in accordance with the approved submittal schedule or, in the absence of an approved submittal schedule, with reasonable promptness while allowing sufficient time, in the Architect's professional judgment, to permit adequate review. § 3.6.4.2 The Architect shall review and take other appropriate action upon, the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. Review of such submittals is not for the purpose of determining the accuracy and completeness of other information such as dimensions, quantities, and installation or performance of equipment or systems, which are the Contractor's responsibility. The Architect's review shall not constitute review of or approval of safety precautions or construction means, methods, techniques, sequences or procedures. The Architect's review of a specific item shall not indicate review of or approval of an assembly of which the item is a component. § 3.6.4.3 If the Contract Documents specifically require the Contractor to provide professional design services or certifications by a design professional related to systems, materials, or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy. The Architect shall review and take appropriate action on Shop Drawings and other submittals related to the Work designed or certified by the Contractor's design professional, provided the submittals bear such professional's seal and signature when submitted to the Architect. The Architect's review shall be for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect shall be entitled to rely upon, and shall not be responsible for, the adequacy and accuracy of the services, certifications, and approvals performed or provided by, such design professionals. § 3.6.4.4 Subject to Section 4.2, the Architect shall review and respond to requests for information about the Contract Documents. The Architect shall set forth, in the Contract Documents, the requirements for requests for information. Requests for information shall include, at a minimum, a detailed written statement that indicates the specific Drawings or Specifications in need of clarification and the nature of the clarification requested. The Architect's response to such requests shall be made in writing within any time limits agreed upon, or otherwise with reasonable promptness. If appropriate, the Architect shall prepare and issue supplemental Drawings and Specifications in response to the requests for information. § 3.6.4.5 The Architect shall maintain a record of submittals and copies of submittals supplied by the Contractor in accordance with the requirements of the Contract Documents. § 3.6.5 Changes in the Work § 3.6.5.1 The Architect may order minor changes in the Work that are consistent with the intent of the Contract Documents and do not involve an adjustment in the Contract Sum or an extension of the Contract Time. Subject to Section 4.2, the Architect shall prepare Change Orders and Construction Change Directives for the Owner's approval and execution in accordance with the Contract Documents. § 3.6.5.2 The Architect shall maintain records relative to changes in the Work. § 3.6.6 Project Completion § 3.6.6.1 The Architect shall: .1 conduct field reviews to determine the date or dates of Substantial Completion and the date of final completion; issue Certificates of Substantial Completion; forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract Documents and received from the Contractor; and, issue a final Certificate for Payment based upon a final inspection indicating that, to the best of the Architect's knowledge, information, and belief, the Work complies with the requirements of the Contract Documents. Init. AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents. are registered trademarks and may not be used without permission. This document was i o produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. § 3.6.6.2 The Architect's field reviews shall be conducted with the Owner to check conformance of the Work with the requirements of the Contract Documents and to verify the accuracy and completeness of the list submitted by the Contractor of Work to be completed or corrected. § 3.6.6.3 When Substantial Completion has been achieved, the Architect shall inform the Owner about the balance of the Contract Sum remaining to be paid the Contractor, including the amount to be retained from the Contract Sum, if any, for final completion or correction of the Work. § 3.6.6.4 The Architect shall forward to the Owner the following information received from the Contractor: (1) consent of surety or sureties, if any, to reduction in or partial release of retainage or the making of final payment; (2) affidavits, receipts, releases and waivers of liens, or bonds indemnifying the Owner against liens; and (3) any other documentation required of the Contractor under the Contract Documents. § 3.6.6.5 Upon request of the Owner, and prior to the expiration of one year from the date of Substantial Completion, the Architect shall, without additional compensation, conduct a meeting with the Owner to review the facility operations and performance. ARTICLE 4 SUPPLEMENTAL AND ADDITIONAL SERVICES § 4.1 Supplemental Services § 4.1.1 The services listed below are not included in Basic Services but may be required for the Project. The Architect shall provide the listed Supplemental Services only if specifically designated in the table below as the Architect's responsibility, and the Owner shall compensate the Architect as provided in Section 11.2. Unless otherwise specifically addressed in this Agreement, if neither the Owner nor the Architect is designated, the parties agree that the listed Supplemental Service is not being provided for the Project. (Designate the Architect 's Supplemental Services and the Owner's Supplemental Services required for the Project by indicating whether the Architect or Owner shall be responsible for providing the identified Supplemental Service. Insert a description of the Supplemental Services in Section 4.1.2 below or attach the description of services as an exhibit to this Agreement.) Supplemental Services § 4.1.1.1 Programming § 4.1.1.2 Multiple preliminary designs § 4.1.1.3 Measured drawings § 4.1.1.4 Existing facilities surveys § 4.1.1.5 Site survey § 4.1.1.6 Building Information Model management responsibilities Responsibility (Architect, Owner, or not provided) Architect, included with Predesign, see 4.1.1.31 below Not provided Not provided Not provided Architect Not provided § 4.1.1.7 Development of Building Information Models for post construction use § 4.1.1.8 Civil engineering § 4.1.1.9 Landscape design § 4.1.1.10 Architectural interior design § 4.1.1.11 Value analysis Not provided Architect Architect Architect (basic services) Not provided § 4.1.1.12 Detailed cost estimating beyond that required in Section 6.3 Architect § 4.1.1.13 On -site project representation § 4.1.1.14 Conformed documents for construction Not provided Architect (basic services) § 4.1.1.15 § 4.1.1.16 § 4.1.1.17 As -designed record drawings As -constructed record drawings Post -occupancy evaluation Not provided, may be included as an additional service Not provided, may be included as an additional service Not provided AIA Document B101' — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensee for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) 11 Init. Supplemental Services Responsibility (Architect. Owner, or not provided) § 4.1.1.18 Facility support services Not provided § 4.1.1.19 Tenant -related services Not provided § 4.1.1.20 Architect's coordination of the Owner's consultants NA, Not provided § 4.1.1.21 Telecommunications/data design Architect (basic services) § 4.1.1.22 Audio-visual, paging, clock, access control, intrusion detection, video surveillance and specialty pool systems. Telecommunications active equipment not included. Architect (basic services for system rough -in only) (Row deleted) § 4.1.1.23 Commissioning Not provided § 4.1.1.24 Sustainable Project Services pursuant to Section 4.1.3 NA, Not provided § 4.1.1.25 Fast -track design services NA, Not provided § 4.1.1.26 Multiple bid packages Not provided § 4.1.1.27 Historic preservation NA, Not provided § 4.1.1.28 Furniture, furnishings, and equipment design Not provided § 4.1.1.29 Aquatic design consultant Architect Row deleted § 4.1.1.30 MACC increase/bid alternates Row deleted Architect, only with Owner authorization § 4.1.1.31 Predesign § 4.1.1.32 Geotechnical investigation Architect Architect § 4.1.2 Description of Supplemental Services § 4.1.2.1 A description of each Supplemental Service identified in Section 4.1.1 as the Architect's responsibility is provided below. (Describe in detail the Architect's Supplemental Services identified in Section 4.1.1 or, if set forth in an exhibit, identib, the exhibit. The AIA publishes a number of Standard Form of Architect's Services documents that can be included as an exhibit to describe the Architect's Supplemental Services) As described in this Agreement and Exhibit B. § 4.1.2.2 A description of each Supplemental Service identified in Section 4.1.1 as the Owner's responsibility is provided below. (Describe in detail the Owner's Supplemental Services identified in Section 4.1.1 or, if set forth in an exhibit, identift the exhibit.) As described in this Agreement.. § 4.1.3 If the Owner identified a Sustainable Objective in Article 1, the Architect shall provide, as a Supplemental Service, the Sustainability Services required in AIA Document E204Tm-2017, Sustainable Projects Exhibit, attached to this Agreement. The Owner shall compensate the Architect as provided in Section 11.2. § 4.2 Architect's Additional Services (see also SECTION 2.2 of the prime Agreement for Professional Services) The Architect may provide Additional Services after execution of this Agreement without invalidating the Agreement. Except for services required due to the fault of the Architect, any Additional Services provided in accordance with this Section 4.2 shall entitle the Architect to compensation pursuant to Section 11.3 and an appropriate adjustment in the Architect's schedule. AIA Document B101' — 2017. Copyright© 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents° Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) § 4.2.1 Upon recognizing the need to perform the following Additional Services, the Architect shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Architect shall not proceed to provide the following Additional Services until the Architect receives the Owner's written authorization: . 1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including size, quality, complexity, the Owner's schedule or budget for Cost of the Work, or procurement or delivery method; .2 Services necessitated by the enactment or revision of codes, laws, or regulations, including changing or editing previously prepared Instruments of Service; . 3 Changing or editing previously prepared Instruments of Service necessitated by official interpretations of applicable codes, laws or regulations that are either (a) contrary to specific interpretations by the applicable authorities having jurisdiction made prior to the issuance of the building permit, or (b) contrary to requirements of the Instruments of Service when those Instruments of Service were prepared in accordance with the applicable standard of care; Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner's consultants or contractors; . 5 Preparing digital models or other design documentation for transmission to the Owner's consultants and contractors, or to other Owner -authorized recipients; .6 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner; .7 Preparation for, and attendance at, a public presentation, meeting or hearing; Preparation for, and attendance at, a dispute resolution proceeding or legal proceeding, except where the Architect is party thereto; . 9 Evaluation of the qualifications of entities providing bids or proposals; .10 Consultation concerning replacement of Work resulting from fire or other cause during construction; or, .11 Assistance to the Initial Decision Maker, if other than the Architect. § 4.2.2 To avoid delay in the Construction Phase, the Architect shall provide the following Additional Services, notify the Owner with reasonable promptness, and explain the facts and circumstances giving rise to the need. If, upon receipt of the Architect's notice, the Owner determines that all or parts of the services are not required, the Owner shall give prompt written notice to the Architect of the Owner's determination. The Owner shall compensate the Architect for the services provided prior to the Architect's receipt of the Owner's notice. .1 Reviewing a Contractor's submittal out of sequence from the submittal schedule approved by the Architect; Responding to the Contractor's requests for information that are not prepared in accordance with the Contract Documents or where such information is available to the Contractor from a careful study and comparison of the Contract Documents, field conditions, other Owner -provided information, Contractor -prepared coordination drawings, or prior Project correspondence or documentation; Preparing Change Orders and Construction Change Directives that require evaluation of Contractor's proposals and supporting data, or the preparation or revision of Instruments of Service; Evaluating an extensive number of Claims as the Initial Decision Maker; or, Evaluating substitutions proposed by the Owner or Contractor and making subsequent revisions to Instruments of Service resulting therefrom. § 4.2.3 The Architect shall provide Construction Phase Services exceeding the limits set forth below as Additional Services. When the limits below are reached, the Architect shall notify the Owner: .1 Two (2 ) reviews of each Shop Drawing, Product Data item, sample and similar submittals of the Contractor. .2 • Refer to Exhibit B for number of visits to the site by the Architect and Consultants. .3 One ( 1 ) field reviews for any portion of the Work to determine whether such portion of the Work is substantially complete in accordance with the requirements of the Contract Documents (one punchlist review). One ( 1 ) field reviews for any portion of the Work to determine final completion (one punchlist backcheck review). § 4.2.4 Except for services required under Section 3.6.6.5 and those services that do not exceed the limits set forth in Section 4.2.3, Construction Phase Services provided more than 60 days after (1) the date of Substantial Completion of AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Init. Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) the Work or (2) the initial date of Substantial Completion identified in the agreement between the Owner and Contractor, whichever is earlier, shall be compensated as Additional Services to the extent the Architect incurs additional cost in providing those Construction Phase Services. § 4.2.5 If the services covered by this Agreement have not been completed within twenty-four (24 ) months of the date of this Agreement, through no fault of the Architect, extension of the Architect's services beyond that time shall be compensated as Additional Services. ARTICLE 5 OWNER'S RESPONSIBILITIES (see also SECTION 4 of the prime Agreement for Professional Services) § 5.1 Unless otherwise provided for under this Agreement, the Owner shall provide 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. § 5.2 The Owner shall establish the Owner's budget for the Project, including (1) the budget for the Cost of the Work as defined in Section 6.1; (2) the Owner's other costs; and, (3) reasonable contingencies related to all of these costs. The Owner shall update the Owner's budget for the Project as necessary throughout the duration of the Project until final completion. If the Owner significantly increases or decreases the Owner's budget for the Cost of the Work, the Owner shall notify the Architect. The Owner and the Architect shall thereafter agree to a corresponding change in the Project's scope and quality. § 5.3 The Owner shall identify a representative authorized to act on the Owner's behalf with respect to the Project. The Owner shall render decisions and approve the Architect's submittals in a timely manner in order to avoid unreasonable delay m the orderly and sequential progress of the Architect's services. § 5.4 The Owner shall provide the Supplemental Services designated as the Owner's responsibility in Section 4.1.1. § 5.5 The Owner shall coordinate the services of its own consultants with those services provided by the Architect. Upon the Architect's request, the Owner shall furnish copies of the scope of services in the contracts between the Owner and the Owner's consultants. The Owner shall furnish the services of consultants other than those designated as the responsibility of the Architect in this Agreement, or authorize the Architect to furnish them as an Additional Service, when the Architect requests such services and demonstrates that they are reasonably required by the scope of the Project. The Owner shall require that its consultants and contractors maintain insurance, including professional liability insurance, as appropriate to the services or work provided. § 5.6 The Owner shall furnish tests, inspections and reports required by law or the Contract Documents, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous materials. § 5.7 The Owner shall furnish all legal, insurance and accounting services, including auditing services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests. § 5.8 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any fault or defect in the Project, including errors, omissions or inconsistencies in the Architect's Instruments of Service. § 5.9 The Owner shall include the Architect in all communications with the Contractor that relate to or affect the Architect's services or professional responsibilities. The Owner shall promptly notify the Architect of the substance of any direct communications between the Owner and the Contractor otherwise relating to the Project. Communications by and with the Architect's consultants shall be through the Architect. § 5.10 Before executing the Contract for Construction, the Owner shall coordinate the Architect's duties and responsibilities set forth in the Contract for Construction with the Architect's services set forth in this Agreement. The Owner shall provide the Architect a copy of the executed agreement between the Owner and Contractor, including the General Conditions of the Contract for Construction. Init. AIA Document B101' — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia,org. User Notes: (1263284272) Init. § 5.11 The Owner shall provide the Architect access to the Project site prior to commencement of the Work and shall obligate the Contractor to provide the Architect access to the Work wherever it is in preparation or progress. § 5.12 Within 15 days after receipt of a written request from the Architect, the Owner shall furnish the requested information as necessary and relevant for the Architect to evaluate, give notice of, or enforce lien rights. (Paragraphs deleted) ARTICLE 6 COST OF THE WORK § 6.1 For purposes of this Agreement, the Cost of the Work shall be the total cost to the Owner to construct all elements of the Project designed or specified by the Architect and shall include contractors' general conditions costs, overhead and profit. The Cost of the Work also includes the reasonable value of labor, materials, and equipment, donated to, or otherwise furnished by, the Owner. The Cost of the Work does not include the compensation of the Architect; the costs of the land, rights -of -way, financing, sales tax or contingencies for changes in the Work; or other costs that are the responsibility of the Owner. § 6.2 The Owner's budget for the Cost of the Work is provided in Initial Information, and shall be adjusted throughout the Project as required under Sections 5.2, 6.4 and 6.5. The Architect's evaluations of the Owner's budget for the Cost of the Work, and the preliminary estimate of the Cost of the Work and updated estimates of the Cost of the Work, prepared by the Architect, represent the Architect's best judgment as a design professional. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, materials, or equipment; the Contractor's methods of determining bid prices; or 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 budget for the Cost of the Work, or from any estimate of the Cost of the Work, or evaluation, prepared or agreed to by the Architect. § 6.3 In preparing estimates of the Cost of Work, 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 recommend reasonable adjustments in the program and scope of the Project; and to include design alternates as may be necessary to adjust the estimated Cost of the Work to meet the Owner's budget. The Architect's estimate of the Cost of the Work shall be based on current area, volume or similar conceptual estimating techniques. If the Owner requires a detailed estimate of the Cost of the Work, the Architect shall provide such an estimate, if identified as the Architect's responsibility in Section 4.1.1, as a Supplemental Service. § 6.4 If, through no fault of the Architect, the Procurement Phase has not commenced within 90 days after the Architect submits the Construction Documents to the Owner, the Owner's budget for the Cost of the Work shall be adjusted to reflect changes in the general level of prices in the applicable construction market. § 6.5 If at any time the Architect's estimate of the Cost of the Work exceeds the Owner's budget for the Cost of the Work, the Architect shall make appropriate recommendations to the Owner to adjust the Project's size, quality, or budget for the Cost of the Work, and the Owner shall cooperate with the Architect in making such adjustments. § 6.6 If the Owner's budget for the Cost of the Work (including the $1,200,000 allowance for an increase in the MACC) at the conclusion of the Construction Documents Phase Services is exceeded by the lowest bona fide bid or negotiated proposal, the Owner shall .1 give written approval of an increase in the budget for the Cost of the Work; .2 authorize rebidding or renegotiating of the Project within a reasonable time; .3 terminate in accordance with Section 9.5; .4 in consultation with the Architect, revise the Project program, scope, or quality as required to reduce the Cost of the Work; or, .5 implement any other mutually acceptable alternative. § 6.7 If the Owner chooses to proceed under Section 6.6.4, the Architect shall modify the Construction Documents as necessary to comply with the Owner's budget for the Cost of the Work at the conclusion of the Construction Documents Phase Services, or the budget as adjusted under Section 6.6.1. If the Owner requires the Architect to modify the Construction Documents because the lowest bona fide bid or negotiated proposal exceeds the Owner's budget for the Cost of the Work due to market conditions the Architect could not reasonably anticipate, the Owner AIA Document B101- — 2017. Copyright O 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission, This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. 1 shall compensate the Architect for the modifications as an Additional Service pursuant to Section 11.3; otherwise the Architect's services for modifying the Construction Documents shall be without additional compensation. In any event, the Architect's modification of the Construction Documents shall be the limit of the Architect's responsibility under this Article 6. ARTICLE 7 COPYRIGHTS AND LICENSES (see also SECTION 9 of the prime Agreement for Professional Services) § 7.1 The Architect and the Owner warrant that in transmitting Instruments of Service, or any other information, the transmitting party is the copyright owner of such information or has permission from the copyright owner to transmit such information for its use on the Project. § 7.2 The Architect and the Architect's consultants shall be deemed the authors of their respective Instruments of Service, including the Drawings and Specifications, and shall retain all common law, statutory and other reserved rights, including copyrights. Submission or distribution of Instruments of Service to meet official regulatory requirements or for similar purposes in connection with the Project is not to be construed as publication in derogation of the reserved rights of the Architect and the Architect's consultants. § 7.3 The Architect grants to the Owner a nonexclusive license to use the Architect's Instruments of Service solely and exclusively for purposes of constructing, using, maintaining, altering and adding to the Project, provided that the Owner substantially performs its obligations under this Agreement, including prompt payment of all sums due pursuant to Article 9 and Article 11. The Architect shall obtain similar nonexclusive licenses from the Architect's consultants consistent with this Agreement. The license granted under this section permits the Owner to authorize the Contractor, Subcontractors, Sub -subcontractors, and suppliers, as well as the Owner's consultants and separate contractors, to reproduce applicable portions of the Instruments of Service, subject to any protocols established pursuant to Section 1.3, solely and exclusively for use in performing services or construction for the Project. If the Architect rightfully terminates this Agreement for cause as provided in Section 9.4, the license granted in this Section 7.3 shall terminate. § 7.3.1 In the event the Owner uses the Instruments of Service for any purpose following final completion of construction of the Project or following a termination of this Agreement when the Architect is not in default, the Owner releases the Architect and Architect's consultant(s) from all claims and causes of action arising from such uses. The Owner, to the extent permitted by law, further agrees to indemnify and hold harmless the Architect and its consultants from all costs and expenses, including the cost of defense, related to claims and causes of action asserted by any third person or entity to the extent such costs and expenses arise from the Owner's use of the Instruments of Service under this Section 7.3.1. The terms of this Section 7.3.1 shall not apply if the Owner rightfully terminates this Agreement for cause under Section 9.4. § 7.4 Except for the licenses granted in this Article 7, no other license or right shall be deemed granted or implied under this Agreement. The Owner shall not assign, delegate, sublicense, pledge or otherwise transfer any license granted herein to another party without the prior written agreement of the Architect. Any unauthorized use of the Instruments of Service shall be at the Owner's sole risk and without liability to the Architect and the Architect's consultants. § 7.5 Except as otherwise stated in Section 7.3, the provisions of this Article 7 shall survive the termination of this Agreement. ARTICLE 8 CLAIMS AND DISPUTES (see also SECTION 19 of the prime Agreement for Professional Services) § 8.1 General § 8.1.1 The Owner and Architect shall commence all claims and causes of action against the other and arising out of or related to this Agreement, whether in contract, tort, or otherwise, in accordance with the requirements of the binding dispute resolution method selected in this Agreement and within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Architect waive all claims and causes of action not commenced in accordance with this Section 8.1.1. § 8.1.2 To the extent damages are covered by property insurance, 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 AIA Document A201-2017, General Conditions of AIA Document B101' — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was in produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use ""' only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright©aia.org. User Notes: (1263284272) Init. the Contract for Construction. The Owner or the Architect, 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. (Paragraph deleted) § 8.2 Mediation § 8.2.1 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 binding dispute resolution. 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 or by binding dispute resolution. § 8.2.2 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 administered by the American Arbitration Association in accordance with its Construction Industry Mediation Procedures in effect on the date of this Agreement. A request for mediation shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the mediation. The request may be made concurrently with the filing of a complaint or other appropriate demand for binding dispute resolution but, in such event, mediation shall proceed in advance of binding dispute resolution 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. If an arbitration proceeding is stayed pursuant to this section, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. § 8.2.3 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. § 8.2.4 If the parties do not resolve a dispute through mediation pursuant to this Section 8.2, the method of binding dispute resolution shall be the following: (Check the appropriate box.) [ ] Arbitration pursuant to Section 8.3 of this Agreement [ X ] Litigation in a court of competent jurisdiction [ ] Other: (Specib) If the Owner and Architect do not select a method of binding dispute resolution, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, the dispute will be resolved in a court of competent . . . jurisdiction. § 8.3 The provisions of this Article 8 shall survive the termination of this Agreement. (Paragraphs deleted) ARTICLE 9 TERMINATION OR SUSPENSION (see SECTION 17 and 18 of the prime Agreement for Professional Services) (Paragraphs deleted) ARTICLE 10 MISCELLANEOUS PROVISIONS § 10.1 This Agreement shall be governed by the law of the place where the Project is located, excluding that jurisdiction's choice of law rules. § 10.2 Terms in this Agreement shall have the same meaning as those in AIA Document A201-2017, General Conditions of the Contract for Construction. AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved, The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission: This document was produced by AIA software at 16:2704 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. § 10.3 The Owner and Architect, respectively, bind themselves, their agents, successors, assigns, and legal representatives to this Agreement. Neither the Owner nor the Architect shall assign this Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner's rights and obligations under this Agreement, including any payments due to the Architect by the Owner prior to the assignment. § 10.4 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. If the Owner requests the Architect to execute consents reasonably required to facilitate assignment to a lender, the Architect shall execute all such consents that are consistent with this Agreement, provided the proposed consent is submitted to the Architect for review at least 14 days prior to execution. The Architect shall not be required to execute certificates or consents that would require knowledge, services, or responsibilities beyond the scope of this Agreement. § 10.5 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. § 10.6 The Architect 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. § 10.7 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. This Section 10.7 shall survive the termination of this Agreement unless the Owner terminates this Agreement for cause pursuant to Section 9.4. § 10.8 If the Architect or Owner receives information specifically designated as "confidential" or "business proprietary," the receiving party shall keep such information strictly confidential and shall not disclose it to any other person except as set forth in Section 10.8.1. This Section 10.8 shall survive the termination of this Agreement. § 10.8.1 The receiving party may disclose "confidential"' or "business proprietary" information after 7 days' notice to the other party, when required by law, arbitrator's order, or court order, including a subpoena or other form of compulsory legal process issued by a court or governmental entity, or to the extent such information is reasonably necessary for the receiving party to defend itself in any dispute. The receiving party may also disclose such information to its employees, consultants, or contractors in order to perform services or work solely and exclusively for the Project provided those employees, consultants and contractors are subject to the restrictions on the disclosure and use of such information as set forth in this Section 10.8. § 10.9 The invalidity of any provision of the Agreement shall not invalidate the Agreement or its remaining provisions. If it is determined that any provision of the Agreement violates any law, or is otherwise invalid or unenforceable, then that provision shall be revised to the extent necessary to make that provision legal and enforceable. In such case the Agreement shall be construed, to the fullest extent permitted by law, to give effect to the parties' intentions and purposes in executing the Agreement. ARTICLE 11 COMPENSATION § 11.1 For the Architect's Basic Services described under Article 3, the Owner shall compensate the Architect as follows: .1 Stipulated Sum and Hourly Services (Insert amount) (Paragraphs deleted) See Exhibit B, Architect/Engineering Fees — Basic and Supplemental Services, dated January 17, 2023. AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission, This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale. is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) § 11.2 For the Architect's Supplemental Services designated in Section 4.1.1 and for any Sustainability Services required pursuant to Section 4.1.3, the Owner shall compensate the Architect as follows: (Insert amount of or basis for, compensation. If necessary, list specific services to which particular methods of compensation apply.) Init. See Exhibit B, Architect/Engineering Fees — Basic and Supplemental Services, dated January 17, 2023. § 11.3 For Additional Services that may arise during the course of the Project, including those under Section 4.2, the Owner shall compensate the Architect as follows: (Insert amount of or basis for, compensation.) Compensation may be a stipulated sum, on an hourly basis or any fair and reasonable compensation mutually agreeable to the Owner and Architect. § 11.4 Compensation for Supplemental and Additional Services of the Architect's consultants when not included in Section 112 or 11.3, shall be the amount invoiced to the Architect plus ten percent ( 10%), or as follows: (Insert amount of or basis for computing, Architect's consultants' compensation for Supplemental or Additional Services) § 11.5 When compensation for Basic Services is based on a stipulated sum or a percentage basis, the proportion of compensation for each phase of services shall be as follows: Schematic Design Phase eighteen percent ( 18 %) Design Development Phase twenty percent ( 20 %) Construction Documents thirty-one percent ( 31 %) Phase Procurement Phase two percent ( 2 %) Construction Phase twenty-seven percent ( 27 %) Project Closeout Phase Two 2 %) Total Basic Compensation one hundred percent ( 100 %) § 11.6 When compensation identified in Section 11.1 is on a percentage basis, progress payments for each phase of Basic Services shall be calculated by multiplying the percentages identified in this Article by the Owner's most recent budget for the Cost of the Work. Compensation paid in previous progress payments shall not be adjusted based on subsequent updates to the Owner's budget for the Cost of the Work. § 11.6.1 When compensation is on a percentage basis and any portions of the Project are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to the extent services are performed on those portions. The Architect shall be entitled to compensation in accordance with this Agreement for all services performed whether or not the Construction Phase is commenced. § 11.7 The hourly billing rates for services of the Architect and the Architect's consultants are set forth below. The rates shall be adjusted in accordance with the Architect's and Architect's consultants' normal review practices. (If applicable, attach an exhibit of hourly billing rates or insert them below) Hourly rates for the Architect are indicated on Exhibit C. Hourly rates for the Architect's consultants will be provided upon request. AIA Document B101' — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved, The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. § 11.8 Compensation for Reimbursable Expenses (see also SECTION 6.1 of the prime Agreement for Professional Services) § 11.8.1 Reimbursable Expenses are in addition to compensation for Basic, Supplemental, and Additional Services and include expenses incurred by the Architect and the Architect's consultants directly related to the Project, as follows: .1 .2 Transportation and authorized out-of-town travel and subsistence; Long distance services, dedicated data and communication services, teleconferences, Project web sites, and extranets; . 3 Permitting and other fees required by authorities having jurisdiction over the Project; . 4 Printing, reproductions, plots, and standard form documents; . 5 Postage, handling, and delivery; . 6 Expense of overtime work requiring higher than regular rates, if authorized in advance by the Owner; Renderings, physical models, mock-ups, professional photography, and presentation materials requested by the Owner or required for the Project; If required by the Owner, and with the Owner's prior written approval, the Architect's consultants' expenses of professional liability insurance dedicated exclusively to this Project, or the expense of additional insurance coverage or limits in excess of that normally maintained by the Architect's consultants; .9 All taxes levied on professional services and on reimbursable expenses; .10 Site office expenses; .11 Registration fees and any other fees charged by the Certifying Authority or by other entities as necessary to achieve the Sustainable Objective; and, .12 Other similar Project -related expenditures. § 11.8.2 For Reimbursable Expenses the compensation shall be the expenses incurred by the Architect and the Architect's consultants plus Ten percent (10 %) of the expenses incurred. Refer to Exhibit B for an estimate of Reimbursable Expenses. § 11.9 Architect's Insurance. If the types and limits of coverage required in Section 2.5 are in addition to the types and limits the Architect normally maintains, the Owner shall pay the Architect for the additional costs incurred by the Architect for the additional coverages as set forth below: (Insert the additional coverages the Architect is required to obtain in order to satisfy the requirements set forth in Section 2.5, and for which the Owner shall reimburse the Architect.) § 11.10 Payments to the Architect (see SECTION 6 of the prime Agreement for Professional Services) (Paragraphs deleted) ARTICLE 12 - SPECIAL TERMS AND CONDITIONS Special terms and conditions that modify this Agreement are as follows: (Include other terms and conditions applicable to this Agreement.) None ARTICLE 13 SCOPE OF THE AGREEMENT § 13.1 The prime Agreement between the City of Yakima, WA and NAC Architecture plus this Agreement which is Exhibit A 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 the Owner and Architect. § 13.2 This Agreement is comprised of the following documents identified below: .1 The prime Agreement between the City of Yakima, WA and NAC Architecture, .2 Exhibit A- AIA Document B101TM-2017, Standard Form Agreement Between Owner and Architect (Paragraphs deleted) AIA Document B101" — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission. This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resale, is licensed for one -lime use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) Init. .3 Exhibits: Exhibit B — Architect/Engineering Fees — Basic and Supplemental Services, dated January 17, 2023 Exhibit C- NAC Architecture Current Compensation Rates Exhibit D- Federal Clauses (Paragraphs deleted) Refer to the prime Agreement between the City of Yakima, WA and NAC Architecture for signatures. (Table deleted) AIA Document B101- — 2017. Copyright © 1974, 1978, 1987, 1997, 2007 and 2017 by The American Institute of Architects. All rights reserved. The "American Institute of Architects," "AIA," the AIA Logo, and "AIA Contract Documents" are registered trademarks and may not be used without permission, This document was produced by AIA software at 16:27:04 ET on 12/19/2022 under Order No.3104237405 which expires on 10/10/2023, is not for resets, is licensed for one-time use only, and may only be used in accordance with the AIA Contract Documents® Terms of Service. To report copyright violations, e-mail copyright@aia.org. User Notes: (1263284272) City ofYakima IVILK Jr. Community Park Pool Design EXHIBIT 0'Arch itmct/Enginmeriog Fees- Basic and Supplemental Services January 17,3O23 xxcx/r*cruv, 1 A/E Fees- Basic Services Per Washington State 4/EFee Schedule (effective July 3O1S) K8ACC(not including sales tax) xSchedule BV6 9,250,000 8.12% 751,100 (includes architectural, interior design, structural, mechanical, electrical- low voltage audio'visua|, paging, clock, access control, intrusion detection, video surveillance and specialty pool systems rough -in only) 8a A/E Fees- Basic Services (SD,00,CD) lb A/EFees Basic Services (�Umg,CA, � ptional additional fee included only if authorized in writing Subtotal Basic Services Fee- Stipulated Sum (if authorized Unwriting) 518,259 232, 2 Supplemental Services- Engineers and Specialty Consultants 14 41 411.8 Civil Engineering Allowance (SJlD[\CD) (Paranmetrix) 49,000 1.10 53,9K00 (Bidding, CA, Closeout) 21,0�00 1.10 23100 411.9 Landscape Architect BC\OC\CD) (MTLA) 9,07 1.10 9,97 (Bidding,CA, Closeout) 3,620 1.10 3,982 4.1.1.29 Aquatic Consultant (SC\DD\CD) (Water Technology) 104,304 1.10 114,734 (Bidding,CA, Closeout) 12,730 1.10 13,992 Subtotal Engineers anSpecialty d Consultants Fee- Stipulated Sum 178,614 41,074 3 Supplemental Services- A/E Fees for Budget Increase or Bid Alternates Optional additional fee allowance included only if the original MACC is increased or if bid alternates are added above the original MACC ($1.2 is budget estimate for adding phase 2 pool). MACC(not including sales tax) xSchedule BYW(above) 1,200,000 8.1296 67,234 30l206 Aquatic Consultant (SJD,DC\CD) (Water Technology) 53/464 1.10 58010 (Bidding, CA, Closeout) 6,520 1.10 7,172 41130 Subtotal Budget Increase Fee- Stipulated Sum Allowance (if authorized in writing) 126,044 87,37 4 Supp |ementa|Services-Predesign (confirm program and budget) Support Construction cost budget for concept options (3 max) 3max) with renderings and attend (l)connmuntyengagement event Support and attend (1)City Council/Park Commission presentation (presentations in other phases are included in Basic Services) 4.1.1.1 Confirm program for aquatics and poo|house Develop concepts ( Architect 29/5�0 1.00 29/450 Aquatic Consultant 15,393 1.10 16,931 Cost Estimating (K4A[CEstimating Group) 1'500 1.10 1,650 ates 48,031 4.1.1.31 Subtotal Preclesign EstV,­,,,atecl Time at Specific Hourly Z 5 Supplemental Services- Miscellaneous 4.1.1.12 Cost Estimating (MACC Estimating Group) 4.1.1.5 Survey Allowance (Parametrix)- entire park Topo, Boundary, Utilities (north park only $11,600) 4.1.1.32 Geotechnical Investigation Allowance (GN Northern) Define scope Subtotal Misc Supplemental Services Fee- Stipulated Sum Subtotal Supplemental Services (items 2, 4, & 5) 24,000 1.10 26,400 15,350 1.10 16,885 22,000 1.10 24,200 67,485 294,130 Total A/E Fees- Basic Services and Supplemental Services thru CD's (items 1, 2, 4, & 5) 812,389 Total /E Fees - Total /E Fees- asic Se asic Se ices and Supple ental Services iddin , C, Closeout- ite ices and Su ..le ental Services thru Closeout (ite s 1, 2, 4, Supplemental A/E Fees- Budget Increase or Bid Alternates (item 3) Total All Potential A/E Fees (thru CD's/ thru Closeout- all items) 5 2) 273,915 1, 6,304 126,044 37,37 938,433 1,123,6 2 6 Estimated Direct Non -Salary (Reimbursable) Expenses (not included in A/E fees above) NACestimated neimbunsables Mileage (minus first and last 5Omiles) 300 0.625 188 Meals (for Brooke and Keith) 2 20 40 1O96mark-up 220 10V6 23 Expenses per trip 250 Assume ]Otrips (from PredesiQ thrudoseoud 250 30 7,500 Contingency 192 Travel time 12,800 Civil Engineer estimated reimbunsables 6 trips to Yakima (3 trips design, 3 trips construction) Landscape Architect estimated peimbursab|es 5 trips to Yakima (2 trips design, 3 trips construction) Water Technology Inc. estimated meimnbumsb|es 6trips toYakima ($GSOO'$73OO) Additional trips- $24OOeach Estimated reinnbursab|esfor structural, mechanical and electrical Number of trips to be determined Plans advertising, printing and distribution 11.8.1 Total Estimated 0einnburssb|es Total All Potam0ia|A/E Fees plus Rammbwrsab|as `2"173,923 XHI • IT C CURRENT COMPENSATION RATES Effective for service performed after July 24, 2014 HOURLY BILLING RATE METHOD Per Hour Rates Principals - Architecture & Engineering Architects & Engineers Architectural and Engineering Designers & Technicians Construction Managers Architecture & Engineering 4 ............. $265.00 $250.00 $230.00 $210.00 $195.00 $175.00 $165.00 $145.00 $165.00 $155.00 $145.00 $135.00 $125.00 $115.00 $105.00 $ 95.00 $ 85.00 $155.00 $145.00 $135.00 $125.00 $115.00 $105.00 $ 95.00 $ 85.00 $ 75.00 $ 65.00 $170.00 $150.00 $130.00 $110.00 CURRENT COMPENSATION RATES September 25, 2014 Page 2 Interior Design $155.00 $145.00 $135.00 $125.00 $115.00 $105.00 $ 95.00 $ 85.00 $ 75.00 $ 65.00 Interns Interns - Architecture, Engineering and Interior Design $ 65.00 Rates are subject to periodic change. CONSULTANT EXPENSES Consultant's Invoice Cost times REIMBURSABLE EXPENSES 0 Reimbursable expenses shall include printing and reproductions; postage; courier service; long distance telephone; and authorized travel which may include airfare, ground transportation, lodging, meals, etc. Auto expense will be charged at the current IRS rate per mile. All reimbursed expenses shall be billed at times the actual invoice cost. PAST DUE ACCOUNTS 1.10 Job progress and time records are closed the 24th of each month and bills are sent about the 10th of the following month. Payment is due within 30 days. Interest on past due accounts is charged at the rate of 1.5% per month. WATER TECHNOLOGY, INC COMPENSATION RATES Principal/Director $200.00 Project Manager/Engineer $150.00 Creative Studio $130.00 Project Design $115.00 Mechanical Design S135.00 Technical Design $85.00 Administrative $60.00 EXHIBIT D FEDERAL CLAUSES Federal Contract provisions. (Adapted from § 200.326) Federal Funding When spending Federal Funding, the City complies with and has a separate policy for "Uniform Administrative Requirement, Cost Principals, and Audit Requirements for Federal Awards", published in Title 2 of the Code of Federal Regulations, (2 CFR 200), specifically 2 CFR 200.318 through 200.326. ALL GRANTS ARE DIFFERENT, so one size does not fit all. Some grants simply require you to use your own procurement rules, while others require you to insert their contracting clauses into your contract. 2 CFR 200 Procurement Standards for when utilizing Federal Funds (Adapted for City of Yakima use to comply with 200.318 through 200,326) 200.318 General procurement standards. 200.319 Competition. 200.320 Methods of procurement to be followed. 200.321 Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms. 200.322 Procurement of recovered materials. 200.323 Contract cost and price. 200.324 Federal awarding agency or pass -through entity review. 200.325 Bonding requirements. 200.326 Contract provisions. 1. General procurement standards. (Adapted from §200.318) A. Conform to Federal Law: The City uses its own documented procurement procedures which reflect applicable State, local, laws and regulations, providing for procurements that conform to applicable Federal law and the standards identified in these Procurement Standards. B. Oversight: City Attorney shall maintain oversight when procuring Equipment, Materials, Services and Limited Public Works, to ensure that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders. C. Conflict of Interest: City maintains written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award and administration of contracts in the City. In addition, no employee, officer, or agent may participate in the selection, award, or administration of a contract supported by a Federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an Agreement 12214Q Page 17 of 27 organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract. The officers, employees, and agents of the City may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. D. Organizational Conflicts of Interest; If the City has a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe, the City maintains written standards of conduct covering organizational conflicts of interest. Organizational conflicts of interest means that because of relationships with a parent company, affiliate, or subsidiary organization, the City entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization. E Most Economical Approach: The City must avoid acquisition of unnecessary or duplicative items. Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase. Where appropriate, an analysis will be made of lease versus purchase alternatives, and any other appropriate analysis to determine the most economical approach. F. Intergovernmental Procurements: To foster greater economy and efficiency, and in accordance with efforts to promote cost-effective use of shared services across the Federal Government, the City is encouraged to enter into state and local intergovernmental agreements or inter -entity agreements where appropriate for procurement or use of common or shared goods and services. G. Federal Surplus: The City is encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs. H. Value Engineering: The City is encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions. Value engineering is a systematic and creative analysis of each contract item or task to ensure that its essential function is provided at the overall lower cost. Responsible Contractor: The City must award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity, compliance with public policy, record of past performance, and financial and technical resources. See also § 200.213 Suspension and debarment. J. Records: The City must maintain records sufficient to detail the history of procurement. These records will include, but are not necessarily limited to, the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the contract price. K. Time and Materials Contracts: The City entity may use a time and materials type contract only after a determination that no other contract is suitable and if the contract includes a ceiling price that the contractor exceeds at its own risk. Time and materials type contract means a contract whose cost to a City is the sum of: i. The actual cost of materials; and ii. Direct labor hours charged at fixed hourly rates that reflect wages, general and administrative expenses, and profit. Agreement 12214Q Page 18 of 27 L. Ceiling Price: Since this formula generates an open-ended contract price, a time -and -materials contract provides no positive profit incentive to the contractor for cost control or labor efficiency. Therefore, each contract must set a ceiling price that the contractor exceeds at its own risk. Further, the City awarding such a contract must assert a high degree of oversight in order to obtain reasonable assurance that the contractor is using efficient methods and effective cost controls. M. Issues: The City alone must be responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements. These issues include, but are not limited to, source evaluation, protests, disputes, and claims. These standards do not relieve the City of any contractual responsibilities under its contracts. The Federal awarding agency will not substitute its judgment for that of the City unless the matter is primarily a Federal concern. Violations of law will be referred to the local, state, or Federal authority having proper jurisdiction. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 80 FR 43309, July 22, 2015] 2. Competition. (Adapted from § 200.319) A. Full and Open Competition: All procurement transactions must be conducted in a manner providing full and open competition consistent with the standards of this section. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, or invitations for bids or requests for proposals must be excluded from competing for such procurements. Some of the situations considered to be restrictive of competition include but are not limited to: B. Unreasonable Requirements* Placing unreasonable requirements on firms in order for them to qualify to do business; C. Unnecessary Experience and Bonding: Requiring unnecessary experience and excessive bonding; D, Noncdmpetitie Pricing: Noncompetitive pricing practices between firms or between affiliated companies; E. Noncompetitive Contracts: Noncompetitive contracts to consultants that are on retainer contracts; F. Organizational conflicts of interest: G. Brand Name: Specifying only a "brand name" product instead of allowing "an equal" product to be offered and describing the performance or other relevant requirements of the procurement; and H. Arbitrary Actions: Any arbitrary action in the procurement process. Geographical Preferences: The City will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed state, local, or tribal geographical preferences in the evaluation of bids or proposals, except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference. Nothing in this section preempts state licensing laws. When contracting for architectural and engineering (AIE) services, geographic location may be a selection criterion provided its application leaves an appropriate number of qualified firms, given the nature and size of the project, to compete for the contract. J. The City ensures that all solicitations: Agreement 12214Q Page 19 of 27 i. Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description must not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured and, when necessary, must set forth those minimum essential characteristics and standards to which it must conform if it is to satisfy its intended use. Detailed product specifications should be avoided if at all possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a "brand name or equivalent" description may be used as a means to define the performance or other salient requirements of procurement. The specific features of the named brand which must be met by offers must be clearly stated; and ii. Identify all requirements which the offerors must fulfill and all other factors to be used in evaluating bids or proposals. iii. The City ensures that all prequalified lists of persons, firms, or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition. Also, the City must not preclude potential bidders from qualifying during the solicitation period. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014] 3. Methods of procurement to be followed. (Adapted from § 200.320 ) The City must use one of the following methods of procurement. A. Procurement by icro-purchases. Procurement by micro -purchase is the acquisition of supplies or services, the aggregate dollar amount of which does not exceed the micro -purchase threshold (§ 200.67 Micro -purchase). To the extent practicable, the City must distribute micro -purchases equitably among qualified suppliers. Micro - purchases may be awarded without soliciting competitive quotations if the City considers the price to be reasonable. B. Procurement by small purchase procedures. Small purchase procedures are those relatively simple and informal procurement methods for securing services, supplies, or other property that do not cost more than the Simplified Acquisition Threshold. If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources. C. Procurement by sealed bids (formal advertising). Bids are publicly solicited and a firm fixed price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bid method is the preferred method for procuring construction, if the conditions in paragraph (C)(i) of this section apply. i. In order for sealed bidding to be feasible, the following conditions should be present: 1) A complete, adequate, and realistic specification or purchase description is available; 2) Two or more responsible bidders are willing and able to compete effectively for the business; and 3) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price. Agreement 12214Q Page 20 of 27 4) If sealed bids are used, the following requirements apply: a) Bids must be solicited from an adequate number of known suppliers, providing them sufficient response time prior to the date set for opening the bids (11 days for the City in 2 issues and 13 days for the County in 2 issues). The invitation for bids must be publicly advertised; b) The invitation for bids, which will include any specifications and pertinent attachments, must define the items or services in order for the bidder to properly respond; c) All bids will be opened at the time and place prescribed in the invitation for bids, and opened publicly; d) A firm fixed price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs must be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and e) Any or all bids may be rejected if there is a sound documented reason. D. Procurement by competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer, and either a fixed price or cost -reimbursement type contract is awarded. It is generally used when conditions are not appropriate for the use of sealed bids. If this method is used, the following requirements apply: Requests for proposals must be publicized and identify all evaluation factors and their relative importance. Any response to publicized requests for proposals must be considered to the maximum extent practical; ii. Proposals must be solicited from an adequate number of qualified sources; i. The City must have a written method for conducting technical evaluations of the proposals received and for selecting recipients; iv. Contracts must be awarded to the responsible firm whose proposal is most advantageous to the program, with price and other factors considered; and The City may use competitive proposal procedures for qualifications -based procurement of architectural/engineering (NE) professional services whereby competitors' qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. The method, where price is not used as a selection factor, can only be used in procurement of A/E professional services. It cannot be used to purchase other types of services though NE firms are a potential source to perform the proposed effort. vi. Procurement by noncompetitive proposals. Procurement by noncompetitive proposals is procurement through solicitation of a proposal from only one source and may be used only when one or more of the following circumstances apply: Agreement 12214Q Page 21 of 27 1)The item is available only from a single source; 2)The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation; 3)The Federal awarding agency or pass -through entity expressly authorizes noncompetitive proposals in response to a written request from the City; or 4)After solicitation of a number of sources, competition is determined inadequate. [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014; 80 FR 54409, Sept. 10, 2015] 4. Contracting with small and minority businesses, women's business enterprises, and labor surplus area firms. (Adapted from § 200.321) A. The City must take all necessary affirmative steps to assure that minority businesses, women's business enterprises, and labor surplus area firms are used when possible. B. Affirmative steps must include: Placing qualified small and minority businesses and women's business enterprises on solicitation lists (forward requests to Purchasing); is Assuring that small and minority businesses, and women's business enterprises are solicited whenever they are potential sources. iii Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women's business enterprises; Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women's business enterprises; Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce, and Montana Department of Transportation https:f! .mdt.mt.govlbusiness/contractingfcivilldbe.shtml.; and vi. Requiring the prime contractor, if subcontracts are to be let, to take the affirmative steps listed in paragraphs (i) through (ii) of this section. 5. Procurement of recovered materials. (Adapted from § 200.322 ) The City must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 CFR part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines. Agreement 12214Q Page 22 of 27 [78 FR 78608, Dec. 26, 2013, as amended at 79 FR 75885, Dec. 19, 2014] 6. Contract cost and price. (Adapted from § 200.323) A. The City must perform a cost or price analysis in connection with every procurement action in excess of the Simplified Acquisition Threshold including contract modifications. The method and degree of analysis is dependent on the facts surrounding the particular procurement situation, but as a starting point, the City must make independent estimates before receiving bids or proposals. B. The City must negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed. To establish a fair and reasonable profit, consideration must be given to the complexity of the work to be performed, the risk borne by the contractor, the contractor's investment, the amount of subcontracting, the quality of its record of past performance, and industry profit rates in the surrounding geographical area for similar work. C. Costs or prices based on estimated costs for contracts under the Federal award are allowable only to the extent that costs incurred or cost estimates included in negotiated prices would be allowable for the City. The City may reference its own cost principles that comply with the Federal cost principles. D. The cost plus a percentage of cost and percentage of construction cost methods of contracting must not be used. 7. Federal awarding agency or pass -through entity review. (Adapted from § 200.324) A. The City must make available, upon request of the Federal awarding agency or pass -through entity, technical specifications on proposed procurements where the Federal awarding agency or pass -through entity believes such review is needed to ensure that the item or service specified is the one being proposed for acquisition. This review generally will take place prior to the time the specification is incorporated into a solicitation document. However, if the City desires to have the review accomplished after a solicitation has been developed, the Federal awarding agency or pass -through entity may still review the specifications, with such review usually limited to the technical aspects of the proposed purchase. B. The City must make available upon request, for the Federal awarding agency or pass -through entity pre - procurement review, procurement documents, such as requests for proposals or invitations for bids, or independent cost estimates, when: The City's procurement procedures or operation fails to comply with the procurement standards in this part; The procurement is expected to exceed the Simplified Acquisition Threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation; The procurement, which is expected to exceed the Simplified Acquisition Threshold, specifies a "brand name" product; iv. The proposed contract is more than the Simplified Acquisition Threshold and is to be awarded to other than the apparent low bidder under a sealed bid procurement; or Agreement 12214Q Page 23 of 27 A proposed contract modification changes the scope of a contract or increases the contract amount by more than the Simplified Acquisition Threshold. C. The City is exempt from the pre -procurement review in paragraph (ii) of this section if the Federal awarding agency or pass -through entity determines that its procurement systems comply with the standards of this part. C. The City may request that its procurement system be reviewed by the Federal awarding agency or pass -through entity to determine whether its system meets these standards in order for its system to be certified. Generally, these reviews must occur where there is continuous high -dollar funding, and third party contracts are awarded on a regular basis; E. The City may self -certify its procurement system. Such self -certification must not limit the Federal awarding agency's right to survey the system. Under a self -certification procedure, the Federal awarding agency may rely on written assurances from the City that it is complying with these standards. The City must cite specific policies, procedures, regulations, or standards as being in compliance with these requirements and have its system available for review. 8. Bonding requirements. (Adapted from § 200.325) For construction or facility improvement contracts or subcontracts exceeding the Simplified Acquisition Threshold, the Federal awarding agency or pass -through entity may accept the bonding policy and requirements of the City provided that the Federal awarding agency or pass -through entity has made a determination that the Federal interest is adequately protected. If such a determination has not been made, the minimum requirements must be as follows: A. A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" must consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of the bid, execute such contractual documents as may be required within the time specified. B. A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. C. A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract. 9. Federal Contract provisions. (Adapted from § 200.326) The City's contracts utilizing Federal Funding must contain the applicable provisions described in Appendix II to Part 200—Contract Provisions for City Contracts Under Federal Awards, which can be viewed and copied at: http://federal.elaws.0 lcfr!titi .chapterii.part200.appii In addition to other provisions required by the Federal agency or non -Federal entity, all contracts made by the non - Federal entity under the Federal award must contain provisions covering the following, as applicable. Agreement 12214Q Page 24 of 27 (A) Contracts for more than the simplified acquisition threshold currently set at $150,000, which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. 1908, must address administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as appropriate. (B) All contracts in excess of $10,000 must address termination for cause and for convenience by the non -Federal entity including the manner by which it will be effected and the basis for settlement. (C) Equal Employment Opportunity. Except as otherwise provided under 41 CFR Part 60, all contracts that meet the definition of "federally assisted construction contract" in 41 CFR Part 60-1.3 must include the equal opportunity clause provided under 41 CFR 60-1.4(b), in accordance with Executive Order 11246, "Equal Employment Opportunity" (30 FR 12319, 12935, 3 CFR Part, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and implementing regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." (D) Davis -Bacon Act, as amended (40 U.S.C, 3141-3148). When required by Federal program legislation, all prime construction contracts in excess of $2,000 awarded by non -Federal entities must include a provision for compliance with the Davis -Bacon Act (40 U.S,C, 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 CFR Part 5, "Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction"). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non -Federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. The contracts must also include a provision for compliance with the Copeland "Anti -Kickback" Act (40 U.S.C. 3145), as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States"). The Act provides that each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non -Federal entity must report all suspected or reported violations to the Federal awarding agency. Agreement 12214Q Page 25 of 27 (E) Contract Work Hours and Safety Standards Act . Where applicable, all contracts awarded by the non -Federal entity inexcess of $100,000 that involve the employment of mechanics mlaborers must include a provision for compliance with 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (L9 CFR Part 5). Under 40 U.S.C. 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and ahalf times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous o[dangerous. These requirements dunot apply tothe purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation ortransmission nfintelligence. (F)Rights toInventions Made Under aContract orAgreement. If the Federal award meets the definition of "funding agreement" under 37CFR§4O12() and the recipient cxoubnau ieO wishes boenter into acontract with asmall business firm or nonprofit organization regarding the substitution of parties, assignment or performance of experimental, developmental, orresearch work under that "funding ogeoment.^the recipient oroubnaoipiantmust comply with the requirements of 37 CFR Part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements," and any implementing regulations issued b«the awarding agency. (G) Clean Air Act (42 -��---�~and the Federal Water Pollufion Control Act� ^---.�~ amend ed—Contracts and subgrants of amounts in excess of $15O,0O0must contain 8 provision that requires the non -Federal award tQagree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42,U,S.C...17401,-7671,q) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). (H) Debarment and Suspension (Executive Orders 12549and 1 contract award (see 3CFR180.220)must not be made to parties listed on the governmentwide exclusions in the System for Award Management (SAM).in accordance with the OMB guidelines ;t2CFR180that implement Executive Orders 12549(3CFRpart 1980Comp.. p.1BS) and 12889(3CFRpart 1989Comp.'p.235)."Debarment and 8uopenoion."GAN1Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory orregulatory authority other than Executive Order 12549. Agreement 12214Q Page 2Wcf 27 /1)8vrd Amendment that apply or bid for @naward exceeding $1UU,0OU must file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee ofany agency, amember of Congress, officer oremployee of Congress, oronemployee ofamember ofCongress in connection with obtaining any Federal contract, grant or any other award covered by 31. U.S.C. 11,352, Each tier must also disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier bntier Upb)the non -Federal award. 0See Q20U.322Procurement of recovered materials. [78 FR 78608/Dec. J62013, as amended at 79 FR 75888, Dec. 1B,2014] Agmemerd12214Q Page 27of27 1 ITEM TITLE: SUBMITTED BY: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEM ENT Item No. 6.0. For Meeting of: January 3, 2023 Resolution awarding RFQ 12214Q and authorizing an agreement with NAC Architecture, for Aquatic Pool Design Services Christina Payer, Buyer II Ken Wilkinson, Parks and Recreation Manager SUMMARY EXPLANATION: Award of Request for Qualifications (RFQ) and agreement to provide aquatic pool design services for MLK Jr. Park pool ITEM BUDGETED: STRATEGIC PRIORITY: Yes Neighborhood and Community Building APPROVED FOR SUBMITTAL BY THE CITY MANAGER RECOMMENDATION: Adopt Resolution ATTACHMENTS: Description 0 Resolution Agreement 12214Q ❑ Agreement 12214Q Upload Date 12/22/2022 12/22/2022 Type Corer Memo Contract