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AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN CITY OF MOSCOW, IDAHO AND DESIGN WEST ARCHITECTS, P.A. FOR EAST CITY PARK STAGE DESIGN THIS AGREEMENT FOR PROFESSIONAL SERVICES BETWEEN CITY OF MOSCOW, IDAHO AND DESIGN WEST ARCHITECTS, P.A. FOR EAST CITY PARK STAGE DESIGN (hereinafter "Agreement"), is made and entered into this \ day of ,hA 201 0, by and between the City of Moscow, Idaho, a municipal corporation of the ate of Idaho, 206 East Street, Moscow, Idaho, 83843 (heremafter "CITY"), and Design West Architects, P.A., 254 East Main Street, Pullman, Washington, 99163 (hereinafter "ARCHITECT"). W I T N E S S E T H : WHEREAS, CITY intends to contract with ARCHITECT for completion of a conceptual design for a performance stage, restrooms, and appurtenances in its East City Park as more particularly described hereinbelow at Section II : Scope of Work (hereinafter referred to as the "PROJECT"); and WHEREAS, ARCHITECT agrees to perform the various professional services required for the PROJECT; and NOW, THEREFORE, it is agreed, for and in consideration of the mutual covenants and promises between the parties hereto, as follows : SECTION 1: DEFINITIONS Cost Estimate. An opinion of probable construction cost made by ARCHITECT. In probable construction cost, it is recognized that neither CITY nor ARCHITECT has control over the costs of labor, equipment, or materials, or over ARCHITECT's methods of determining prices or bidding. The opinion of probable construction costs is based on the ARCHITECT's reasonable professional judgment and experience and does not constitute a warranty, express or implied, that the ARCHITECT's bids or the negotiated price of the work will not vary from CITY's budget or from any opinion of probable cost prepared by the ARCHITECT. SECTION II: SCOPE OF WORK ARCHITECT shall provide professional services for the PROJECT as outlined m this Agreement in accordance with the terms and conditions of this Agreement. PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS/ CiTY PAGE I OF8 21:> l(J ·4 \ ---PAGE BREAK--- ARCHITECT's services consist of : 1. Conceptual design schedule to include a non-digital topography plan rendered in color indicating all improvements (including restrooms, sidewalks, stage, cover, road access, spectator area, existing trees as well as locations for service/delivery and VIP performer trailer locations); 2. A computer generated, color drawing showing all building spaces (including stage, restrooms and back-of-house function areas); 3. A color computer modeled 3-D image that illustrates the structures massing, materials, scale, and overall appearance, overlaid with an actual photograph in its proposed location in East City Park; 4. A PROJECT programming report/document that documents the over-all progress, lists all stakeholder/committee members, and lists all required spaces in terms of building area, relationships to other spaces, and furnishings/equipment needs; and 5. An opinion of the cost that anticipates the cost of site development, building construction, equipment needs and project "soft" costs for use in defining the PROJECT scope and possible phases. Completion of the Scope Of Work for the conceptual design shall follow the schedule attached as Exhibit and incorporated herein the same as if fully copied and transcribed. SECTION III: CHANGES IN THE SCOPE OF WORK CITY and ARCHITECT may make additions to the Scope of Work by mutual written agreement. CITY may omit work previously ordered, without penalty, by written i.nstructions to ARCHITECT. The provisions of this Agreement, with appropriate changes in ARCHITECT's compensation and PROJECT schedule, shall apply to all additions and omissions; however, compensation shall not exceed the not-to -exceed amount or reimbursable amount in this Agreement. It is further agreed that the PROJECT is to be completed as described herein, and that CITY shall retain the right to direct ARCHITECT to halt work, including any work in progress, at any time, without penalty, subject only to ARCHITECT's right to compensation for work performed on the PROJECT up to the date ARCHITECT is directed by CITY to halt work . SECTION IV: INDEPENDENT CONTRACTOR The contracting parties warrant by their signature that no employer/employee relationship is established between ARCHITECT and CITY by the terms of this Agreement. It is understood by the parties hereto that ARCHITECT is ail independent contractor and, as such, neither it nor its employees, if any, are employees of CITY for purposes of tax, retirement system, social security (FICA) withholding. PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CITY PAGE 20F 8 ---PAGE BREAK--- SECTION V: COMPENSATION For Basic services performed pursuant to this Agreement, ARCHITECT shall be compensated in a stipulated total sum not to exceed Nine Thousand, Five Hundred dollars fixed costs ($9,500) plus reimbursables as described in Section VII of this Agreement. SECTION VI: PAYMENT Payment for services rendered by ARCHITECT shall be in accordance with the following: ARCHITECT shall submit invoices to CITY and ARCHITECT shall be compensated therefore for work completed and reimbursable expenses incurred during that period, as otherwise provided herein. Payments for invoices prepared by ARCHITECT shall be due and payable net thirty (30) days. If CITY does not make payments to ARCHITECT in accordance with this Agreement, ARCHITECT may suspend its services on the basis of non-performance on the part of CITY. When such progress payments are restored, ARCHITECT shall continue its services under this Agreement. SECTION VII: REIMBURSABLE EXPENSES Reimbursable expenses, in an amount not to exceed five hundred dollars ($500), shall be paid in addition to the compensation for the PROJECT and any additional services and shall include actual expenditures plus a ten percent (I handling fee made by ARCHITECT, its employees or its professional consultants in the interests of the PROJECT for the expenses listed below: A. If authorized in advance in writing by CITY, expense of transportation and living when traveling in connection with the PROJECT; long distance telephone calls and telegrams; and fees paid for securing of approval of authorities having jurisdiction over the PROJECT. B. If authorized in advance in writing by CITY, ARCHITECT's cost of reproducing documents in the interest of the PROJECT, as well as postage and shipping costs in the interest of the PROJECT. SECTION VIII: ARCHITECT'S ACCOUNTING RECORDS Records of ARCHITECT's additional services and reimbursable expenses pertaining to the PROJECT shall be kept on a recognized accounting basis acceptable to CITY and shall be available to CITY or its authorized representatives at CITY's convenience. SECTION IX: TERMINATION OF AGREEMENT This Agreement may be terminated by ARCHITECT upon thirty (30) days' written notice, should CITY fail to substantially perform in accordance with its terms through no fault of PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CITY PAGE3 OF 8 ---PAGE BREAK--- ARCHITECT. CITY may terminate this Agreement upon thirty (30) days' written notice without cause and without further liability to ARCHITECT, except as designated by this Agreement. All working drawings shall become the property of, and shall be surrendered to, CITY. SECTION X: EXTENT OF AGREEMENT This Agreement may be amended only by written instrument signed by both parties hereto. SECTION XI: DATA OF RECORD CITY shall make available to ARCHITECT all technical data of record in CITY's possession, including maps, surveys, borings, and other information required by ARCHITECT, relating to the PROJECT. SECTION XII: QUALIFIED ESTIMATES OF COST The estimates of cost for the PROJECT herein are to be prepared by ARCHITECT through exercise of its experience and judgment in applying presently available cost data; but it is recognized that ARCHITECT has no control over cost of labor and materials, or other competitive bidding procedures and market conditions so that ARCHITECT cannot warrant that the PROJECT construction costs will not vary from their cost estimates as a result of these described factors. Nothing in this paragraph shall serve to release ARCHITECT from exercising the skill, care, and professional judgment exercised by similarly situated professional architects. SECTION XIII: TERMINATION OF PROJECT If any portion of the PROJECT covered by this Agreement shall be suspended, abated, abandoned, or terminated, CITY shall pay ARCHITECT for the services rendered to the date of such suspended, abated, abandoned, or terminated work. SECTION XIV: CITY'S RESPONSIBILITY FOR SPECIAL COSTS AND RELIANCE ON CITY INFORMATION CITY shall pay for all costs and shall obtain licenses, geotechnical reports, topography and boundary surveys, materials testing, destructive discovery, hazardous material surveys and removal and/or management plans and any permits that may be required by local, state, and federal authorities; and shall be responsible for securing necessary land, easements, and rights of-way where applicable. ARCHITECT shall be entitled to rely on the accuracy and completeness of services and information furnished by CITY. ARCHITECT shall provide prompt written notice to CITY if ARCHITECT becomes aware of any errors, omissions or inconsistencies in such services or information. PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CITY PAGE40F8 ---PAGE BREAK--- SECTION XV: STANDARDS OF WORK ARCHITECT agrees that the performance of work described in this Agreement including attachments and exhibit(s) and pursuant to this Agreement shall be done in a professional manner and shall conform to professional standards and ARCHITECT will use that degree of care and skill ordinarily exercised under similar circumstances by members of the profession. ARCHITECT shall perform services as expeditiously as possible as is consistent with professional skill and care and the orderly progress of the work. ARCHITECT has submitted date of completion of final Conceptual Design phase and has prepared a detailed schedule for the performance of ARCHITECT's services (Exhibit which schedule shall be adhered to by ARCHITECT. Unless approved by CITY, ARCHITECT shall not exceed the time limits established by Exhibit except for circumstances out of ARCHITECT's control. SECTION XVI: ARCHITECT'S INSURANCE ARCHITECT will maintain through this Agreement the following insurances: A. Worker's compensation and employer's liability insurance as required by the State ofldaho. B. Comprehensive automobile and vehicle liability insurance covering claims for injuries to members of the public and/or damages to property of others arising from use of motor vehicles, including on-site and off-site operations, and owned, non owned, or hired vehicles, with one million dollars , 000, 000) combined single limits; C. Commercial general liability insurance covering claims for injuries to members of the public or damage to property of others arising out of any covered negligent act or omission of ARCHITECT or of any of its employees, agents, or subcontractors, with $ 1, 000, 000 per occurrence and in the aggregate; D. Errors and Omissions insurance in the amount of One Million Dollars 000, 000). CITY shall be a certificate holder and shall receive notice of any pending termination of said insurance at least thirty ( 30) days prior to such termination. CITY will be named as an additional insured with respect to ARCHITECT's liabilities hereunder in insurance coverage's identified in items and and ARCHITECT and CITY each waive subrogation as to said policies. SECTION XVII: INDEMNITY AND HOLD HARMLESS A. ARCHITECT waives any and all claims and recourse against CITY, including rights of contribution for loss or damage to persons or property arising from, or growing out of, or in any way connected with or incident to ARCHITECT's performance of this Agreement, except for liability arising out of the negligence of CITY or its officers, agents or employees. PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CITY PAGE 5 OF 8 ---PAGE BREAK--- B. ARCHITECT agrees to indemnify and hold harmless CITY and its officers, agents and employees against all liabilities and damages of any nature whatsoever resulting from any injury or damages sustained by any person(s) or property resulting from any negligent act, error or omission of ARCHITECT or its agents, employees, subcontractors or consultants. This indemnity and hold harmless Agreement shall not be limited by reason of the specification of any particular insurance coverage required under the terms of this Agreement. C. It is understood and agreed that this Agreement does not contemplate handling of, or design services including use of, asbestos or any hazardous material or any toxic substance. Therefore, CITY agrees to hold harmless, defend and indemnity ARCHITECT for all claims, lawsuits, expenses or damages arising from or related to the handling, use, treatment, purchase, sale, storage or disposal of asbestos, asbestos products or any hazardous material or any toxic substance (or hazardous materials or toxic substances in general) other than for ARCHITECT's sole negligence. SECTION XVIII: COSTS AND ATTORNEY FEES In the event either party incurs legal expenses to enforce the terms and conditions of this Agreement, the prevailing party is entitled to recover reasonable attorney's fees and other costs and expenses, as determined by a court or through alternate dispute resolution. SECTION XIX: JURISDICTION AND VENUE It is agreed that this Agreement shall be construed under and governed by the laws of the State of Idaho. In the event of litigation concerning it, it is agreed that proper venue shall be the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah. SECTION XX: BINDING OF SUCCESSORS CITY and ARCHITECT each bind themselves, their partners, successors, assigns, and legal representatives to the other parties to this Agreement and to the partners, successors, assigns, and legal representatives of such other parties with respect to all covenants of this Agreement. SECTION XXI: NO PRECLUSION OF ARCHITECT Nothing in the Agreement precludes or is intended to preclude ARCHITECT from being awarded work on other aspects or phases related to the East City Park Restroom/Stage Project Design and/or construction, including but not limited to architectural services, construction monitoring, design, landscaping, and the like. SECTION XXII: MODIFICATION AND ASSIGNABILITY OF AGREEMENT This Agreement contains the entire agreement between the parties for professional Conceptual Design Development services related to the PROJECT, and no statements, promises, or inducements made by either party, or agents of either party, are valid or binding unless contained PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CITY PAGE60F 8 ---PAGE BREAK--- herein. This Agreement may not be enlarged, modified, or altered except upon written agreement signed by the parties hereto. ARCHITECT may not subcontract or assign its rights (including the right to compensation) or duties arising hereunder without the prior written consent and express authorization of CITY. Any such consultant, subcontractor or assignee shall be bound by all of the terms and conditions of this Agreement as if named specifically herein. SECTION XXIII: CITY'S REPRESENTATIVES CITY shall designate a representative authorized to act in behalf of CITY. The authorized representative shall examine the documents of the work as necessary, and shall render decisions related thereto in a timely manner so as to avoid unreasonable delays. CITY authorized representative is Dwight Curtis, Director of Moscow Parks and Recreation;or designee. SECTION XXIV: CONFLICT OF INTEREST ARCHITECT covenants that it presently has no interest and will not acquire any interest, direct or indirect, in the PROJECT which would conflict in any manner or degree with the performance of its services hereunder. ARCHITECT further covenants that, in performing this Agreement, it shall employ no person who has any such interest. SECTION XXV: SPECIAL PROVISIONS A. Ownership and Publication of Materials. All reports, information, data, and other materials prepared by ARCHITECT pursuant to this Agreement shall be the property of CITY, which shall be the exclusive and unrestricted authority to release, publish, or otherwise use them, in whole or in part. All such materials developed under this Agreement shall not be subject to copyright or patent in the United States or in any other country without the prior written approval and express authorization of CITY. It is mutually understood that any alterations made to documents without ARCHITECT's direction shall void ARCHITECT's liability under this subsection. B. Non-Discrimination. ARCHITECT shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, gender, pregnancy, national origin, ancestry, age, marital status, veteran status, disability, sexual orientation, genetic information, or physical or mental handicap. C. Americans With Disabilities Act. ARCHITECT agrees that all aspects of PROJECT will meet cunent ADA design standards. With specific respect to design requirements of the Americans with Disabilities Act of 1990 (ADA), CITY understands that legal interpretation of ADA is not a design professional issue to be addressed by ARCHITECT and, accordingly, CITY agrees to waive any action against ARCHITECT and agrees to indemnify and defend ARCHITECT against any claim arising out of legal interpretation of the ADA other than for ARCHITECT's sole negligence. PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CiTY PAGE 7 OF 8 ---PAGE BREAK--- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date indicated above. ARCHITECT CITY DESIGN WEST ARCHITECTS, P.A. CITY OF MOSCOW, IDAHO ATTEST: STATE OF \ckho ) COUNTY OF ) ss : ) On this day of .JJ:t' , 2010, before me, the undersigned, a Notary in and for said State, personally apj)ed Laurence C. Rose, AlA, known to me to be the person whose name is subscribed to the foregoing Agreement and acknowledged to me that he executed the same in his capacity as Vice President and duly authorized representative of Design West Architects, P.A. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year herein t n , n:s 7 < , I..L£ sll'!, Nt'liliiic forf : -{II Hr:: ResidiLg at VJ4{),2 Ul ' ; . My commission expires: { 3D} 3 , . . 8 o- , s Tfi., 1'11:1111\ PROFESSIONAL SERVICES AGREEMENT EAST CITY PARK STAGE DESIGN DESIGN WEST ARCHITECTS I CITY PAGE 8 OF 8 ---PAGE BREAK--- CONCEPTUAL DESIGN MEETING SCHEDULE *=Stakeholder's Meetings DATE I PURPOSE TIME/PLACE *Wednesday, August 18, 2010 1 2:00- 2:00 p.m. City Hall Council Chambers Confirm that our concept is approved. Exchange ideas relative to our concept layout I design. *Wednesday, August 25,2010 1 : 30 - 3:30p.m. City Hall Council Chambers Show more refined concepts. See if we are on the right track. EVENT Stakeholder Group #1 Stakeholder Group #2 Saturday, September 4, 2010 Display at Moscow Farmers' Market Progress work displayed (by stakeholders). Tuesday, September 7, 2010 8: 00 a -6:00 p.m. Open House in Council Chambers Progress work displayed. Architect and Staff will be available from 4: 00-6: 00 PM. Wednesday- Friday, September 8-10 All Day Display at Hamilton Indoor Recreation Center Progress work displayed. Saturday, September 11,2010 Display at Moscow Farmers' Market Progress work displayed (by stakeholders). *Wednesday, September 15,2010 12:30 - 1:30 p.m. City Hall Council Chambers Present final conceptual 'design. Achieve consensus I approval. Monday, September 20,2010 7:00 p.m. City Hall Council Chambers Stakeholder Group #3 Present to City Council Construction documents and final cost estimate begin after 0 9-20-20 10. Receive approval to begin Design Development I Construction Documentation phase. EXHIBIT