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HomeMy WebLinkAboutPR 17486: PROFESSIONAL SERVICES CONTRACT WITH HADDON + COEAN ARCHITECTS COLLABORATIVE Interoffice MEMORANDUM To: Mayor, City Council, City Manager From: Floyd Batiste, CEO �� Date: January 29, 2013 Subject: P. R. No. 17486; Council Meeting of February 5, 2013 Attached is P. R. No. 17486 authorizing the City of Port Arthur Section 4A Economic Development Corporation to enter into a Professional Service Contract with Haddon + Cowan Architects Collaborative of Austin, Texas, with Vince Hauser as the Design Team Manager in an amount not to exceed $326,000.00 and the reimbursable expenses not to exceed $50,000.00 , 1 P.R. No. 17486 1/29/2013 RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY OF PORT ARTHUR SECTION 4A ECONOMIC DEVELOPMENT CORPORATION TO ENTER INTO A PROFESSIONAL SERVICE CONTRACT WITH HADDON + COWAN ARCHITECTS COLLABORATIVE OF AUSTIN, TEXAS, WITH VINCE HAUSER AS THE DESIGN TEAM MANAGER FOR A TOTAL AMOUNT NOT TO EXCEED $376,000. WHEREAS, it is deemed in the best interest of the citizens of Port Arthur to enhance the appearance of the downtown area and to create an environment conducive to business and entertainment activities for the community; and WHEREAS, the City of Port Arthur Section 4A Economic Development Corporation (the "PAEDC ") desires to relocate its offices to downtown Port Arthur; and WHEREAS, per Resolution No. 10 -092, the City Council authorized the funding for professional services for the feasibility and design for the renovations; and WHEREAS, per Resolution No 10 -271, the PAEDC contracted the services of Vincent Hauser Architect to conduct the feasibility and design study of the building located at 501 Procter Street in downtown Port Arthur; and WHEREAS, per Resolution No 10 -424, the City Council authorized the PAEDC to purchase the property located at 501 Procter Street in downtown Port Arthur; and WHEREAS, on October 31, 2012, the purchase on the subject property was completed and the title company issued a property deed in the name of PAEDC; and WHEREAS, the PAEDC CEO is currently negotiating a long -term lease agreement with the Greater Port Arthur Chamber of Commerce and a private entity; and WHEREAS, per Resolution No 12 -614, the City Council authorized the PAEDC to pursue the building development plan to retrofit the property at 501 Procter based upon the cost estimated attached hereto as Exhibit "A "; and WHEREAS, per Resolution No 12 -614, the City Council further authorized to proceed with the procurement process for the following projects of which the costs shall not exceed $500,000.00: a. Asbestos abatement; b. Preliminary demolition; c. Architectural and engineering services; and WHEREAS, at a special Board meeting on January 28, 2013, the PAEDC Board of Directors voted to enter into a professional service contract with Haddon + Cowan Architects Collaborative of Austin, Texas, with Vince Hauser as the design team manager attached hereto as Exhibit "B "; and WHEREAS, at the special Board meeting on January 28, 2013, the PAEDC Board of Directors also voted that the amount of the contract shall not exceed $326,000 and the reimbursable expenses shall not exceed $50,000 (the total contract cost shall not exceed $376,000). NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR, TEXAS: Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That the City Council authorizes the PAEDC to enter into a professional services contract with Haddon + Cowan Architects Collaborative of Austin, Texas, with Vince Hauser as the design team manager, in substantially the same form as Exhibit `B." #979137 Page 2 4 Section 3. That the City Council authorizes the amount of this contract shall not exceed $326,000 and the reimbursable expenses shall not exceed $50,000 (the total contract cost shall not exceed $376,000). Section 4. That a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED on this day of A.D., 2013, at a Meeting of the City Council of the City of Port Arthur, Texas, by the following vote: AYES: Mayor , Councilmembers , , NOES: Deloris "Bobbie" Prince, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED: Floyd Batiste, PAEDC CEO #979137 Page 3 1 APPROVED AS TO FORM: I • • Guy N. Goodson, PAEDC Attorney APPROVED AS TO FORM: t Valecia R. Tize , i �A tt ney #979137 Page 4 EXHIBIT "A" NMTC Sources and Uses Notes While the New Market Tax Credit Program is tool for revitalization, it is not a guaranteed program and there are upfront costs associated with it such as: - Legal - Audits - CDE AM Fee - Put Reserve In regards to the rehabilitation project at 501 Proctor St, the costs associated with using NMTC are as follows: - Legal: $200,000 - IF Audit: $65,421 - Audit Fee: $78,321 - CDE AM Fee: $138,425 - Put Reserve: $63,549 $545,716 is the estimated cost associated with accessing $1,337,153 in NMTC equity. All costs are included in the development budget and not taken out of operations. � I 1 With NMTC Sources Uses I/O Loan - PAEDC $ 4,066,847 Acquisition $ 200,000 I/O Loan - NMTC Equity $ 1,283,667 Site Improvements $ 27,500 Deferred Loan - NDC $ 53,486 Construction $ 4,011,811 Professional Fees $ 489,982 Construction Finance $ 76,395 Permanent Finance $ - Soft Costs $ 6,000 Reserves $ 46,596 Legal $ 200,000 IF Audit $ 65,421 Audit Fee $ 78,321 CDE AM Fee $ 138,425 Put Reserve $ 63,549 Total Development Sources $ 5,404,000 Total Development Costs $ 5,404,000 Gap $ - NMTC Equity NMTC Costs I/O Loan - NMTC Equity $ 1,283,667 Legal $ 200,000 Deferred Loan - NDC $ 53,486 IF Audit $ 65,421 Total NMTC Equity $ 1,337,153 Audit Fee $ 78,321 CDE AM Fee $ 138,425 Put Reserve $ 63,549 Total NMTC Costs $ 545,716 NMTC Equity $ 1,337,153 NMTC Cost $ 545,716 Net NMTC Proceeds $ 791,437 1 II W/O NMTC Sources Uses I/O Loan - PAEDC $ 4,858,284 Acquisition $ 200,000 Site Improvements $ 27,500 Construction $ 4,011,811 Professional Fees $ 489,98 Construction Finance $ 76,395 Permanent Finance $ - Soft Costs $ 6,000 Reserves $ 46,596 Total Development Sources $ 4,858,284 Total Development Costs $ 4,858,284 Gap $ - Additional Funding Needed $ 791,437 • RTC Sources and Uses Notes While the Historic Rehabilitation Tax Credit Program is tool for revitalization on historic properties, it requires compliance with the National Parks Service standards for historic properties and there are ongoing operating costs associated with it such as: - RTC Investor Exit Tax or Put - Annual RTC Investor Return on Investment - Administrative Fee - Annual Property Taxes (property must owned by a for - profit entity) In regards to the rehabilitation project at 501 Proctor St, the costs associated with using RTC are as follows: - RTC Investor Return: 15% of Equity = $100,065 - RTC Investor Return on Investment: 3% COC, 20,013 x 5 years = $100,065 - Administrative Fee: $1,000 x 5 years = 5,000 - Est. Property Taxes on $3M: $77,342 a year $591,845 is the estimated cost and ongoing property taxes associated with accessing $667,116 in RTC equity. Using NMTC will extend the compliance period to seven years bringing the estimated operating cost increase to $828,583 which is $161,467 over the $667,116 in RTC equity. With RTC Sources Uses I/O Loan - PAEDC $ 4,211,168 Acquisition $ 200,000 RTC Equity $ 667,116 Site Improvements $ 27,500 Construction $ 4,011,811 Professional Fees $ 489,982 Construction Finance $ 76,395 Permanent Finance $ - Soft Costs $ 26,000 Reserves $ 46,596 Total Development Sources $ 4,878,284 Total Development Costs $ 4,878,284 Gap $ - Operating Cost Comparison Year 1 Year 2 Year 3 Year 4 Year 5 RTC Investor Ret (15 %) 20,013 20,013 20,013 20,013 20,013 RTC Investor ROI + Admin 21,013 21,013 21,013 21,013 21,013 Property Taxes 77,342 77,342 77,342 77,342 77,342 Operating Expenses w RTC $ 118,369 $ 118,369 $ 118,369 $ 118,369 $ 118,369 RTC Equity $ 667,116 RTC Equity $ 667,116 Operating Increase 591,845 Operating Increase 828,583 RTC Operating Difference @ 5 years $ 75,271 RTC Operating Difference @ 7 years $ (161,467) W/O RTC Sources Uses I/O Loan - PAEDC $ 4,858,284 Acquisition $ 200,000 Site Improvements $ 27,500 Construction $ 4,011,811 Professional Fees $ 489,982 Construction Finance $ 76,395 Permanent Finance $ - Soft Costs $ 6,000 Reserves $ 46,596 Total Development Sources $ 4,858,284 Total Development Costs $ 4,858,284 Gap $ - Additional Funding Needed $ 647,116 EXHIBIT "B" HADDON +COWAN architects collaborative 1412 Collier St, Suite C Austin, Texas 78704 PH 512 374 9120 F 512 374 9122 www.architectscollaborative.net 28 January 2013 Mr. Floyd Batiste Port Arthur Economic Development Corporation 4173 39' Street Port Arthur, Texas 77642 Re: Proposal for Professional Services for Port Arthur EDC's New Office Dear Floyd: H A D D 0 N + C 0 W A N Architects Collaborative (HCAC) is pleased to present this proposal ( "Proposal ") to the Port Arthur Economic Development Corporation (PAEDC) ( "Owner ") for Programming, Concept Development, and Construction Documents for the renovation of the Port Arthur Savings Building located at 501 Proctor St in Port Arthur, Texas, including new offices for the PAEDC (the "Project)." This Proposal includes General Terms and Conditions which are attached to, and incorporated into this Proposal. The Proposal and the General Terms and Conditions are referred to as the "Agreement" and those documents refer to HCAC as the "Architect." PROJECT DESCRIPTION HCAC shall be the architect of record for the Programming, Building Survey, and Basic Services (Schematic Design, Design Development, Construction Documents, and Construction Administration). The project includes core and shell renovation of approximately 19,500 sq ft on three levels of the existing building and tenant improvements for the PAEDC. The Programming and Building Survey shall be preformed simultaneously to allow the design team to compile all of the information needed to start the Basic Services. For the Building Survey, the Owner shall contract with a demolition contactor to assist in the exploratory demolition that needs to occur. HCAC will coordinate the scope of work with the demolition contractor. Once the Programming and Building Survey is completed, HCAC and their consultants will proceed with the Basic Services. These services include Schematic Design, Design Development, Construction Documents, Bid Negotiations, and Construction Administration that are detailed below. The Basic Services shall document the scope of work for the restoration of the exterior of the building, providing code compliant egress elements and elevators, restoring the existing lobby area, provide for offices, lobbies, conference rooms, and other function per the Program developed for each tenant. HCAC will contract with the following consultants: Design Team Manager: Vincent P. Hauser, Architect Civil Engineering: To be determined Landscape Architecture: To be determined Structural Engineering: Steinman Luevano Structures Interior Design: Edwards +Mulhausen Interior Design MEP Engineering: La Mette Consulting 1412 Collier Street, Suite C Austin, Texas 78704 ph.512.374.9120 fx.512.374.9122 1 1/28/2013 2 of 3 SCOPE OF SERVICES The Scope of Services for Architect is as follows: 1. Meet with Owner to discuss priorities, decisions, and goals. HCAC will work with the Owner and a Demolition Contractor to develop a scope of work to allow for investigational demolition so the team can verify existing conditions. 2. Programming will consist of HCAC and the Owner meeting the user groups to determine what the requirements are for each group and how they relate to each other. From this information, HCAC will develop a project concept plan for approval by the Owner. 3. After approval of the project concept and a notice to proceed, HCAC will proceed with Schematic Design. Schematic Design will identify the project concept and project scope. 4. Once the Schematic Design Package is approved by the Owner, HCAC will work with their consultants to provide a Design Development Package. The Design Development Package drawings shall illustrate and describe the refinement of the design of the Project, establishing the scope, relationship, forms, size and appearance of the Project by means of plans, section and elevations, typical construction details, and equipment layouts. HCAC will coordinate with the Owner's consultants. 5. After approval of the Design Development Package, HCAC will work with their consultants to provide a Construction Document package for the construction of the above reference project. The Construction Documents shall include drawings and specifications for those portions of the Project designed by the design team and that establish the quality levels of materials and systems required for the Project. HCAC will coordinate with the Owner's consultants. 6. Furniture design, speciation, and overseeing installation. 7. Conduct a design review meeting at the completion of each phase. 8. HCAC or their consultants will not be responsible for providing cost estimates or evaluations. 9. HCAC will not be responsible for Zoning and / or permitting. HCAC will support the Owner with required information, but the Owner is responsible for obtaining permits. 10. HCAC will provide Construction Administration services and coordinate with the Owner's representative the National Development Council during construction to include project meeting / site visits, responses to RFI's, review of submittals, application for payment, and project closeout. 11. HCAC will provide support to the Owner in the following tasks: Updating the existing project schedule and budget, responding to proposed tenant Letters of Intent and Tenant Improvement Scope / Workletters, general contractor qualifications, monthly progress reports to City Council and primary financing entity. DELIVERY of SERVICE The Architect's services will be performed as expeditiously as is consistent with professional practice. Architect will develop, with the National Development Council, a reasonable schedule for the project. This schedule shall allow an appropriate amount of time for each phase. Architect, however, shall not have any liability in the event of any deviations from the schedule. ADDITIONAL SERVICES Any services beyond the Basic Services outlined above shall be considered Additional Services, and subject to additional compensation. Additional Services include, but are not limited to; significant changes to previously approved Drawings or Specifications; changes in applicable codes, laws or regulations subsequent to the Client's approval of the Drawings and Specifications. Additional Services shall be billed at $95.00 per hour or proposed on at the request of the Client. Approval in writing of all additional services will be required. REIMBURSABLE EXPENSES 1412 Collier Street, Suite C Austin, Texas 78704 ph.512.374.9120 fx.512.374.9122 1 , 1/28/2013 3 of 3 Reimbursable expenses are in addition to the Professional Fees. Reprographics (excluding internal plots and printing), courier services, travel beyond the City of Austin limits and other normal out -of- pocket costs directly associated with Architect's services are considered reimbursable expenses. Reimbursable expenses will be billed at 1.10 times their cost. The estimated reimbursable expenses are $50,000.00. PROFESSIONAL FEES For the Architect's services noted above for the period described, we propose a lump sum fee of $326,000.00. The reimbursable expenses are exclusive of the professional fee. Invoices for professional services and reimbursable expenses shall be billed the end of each month, based on percent complete. Invoices are due within 30 day of receipt. SUPPLEMENTAL CONDITIONS Signatures below authorize HAD D 0 N + C 0 W A N architects collaborative to proceed with the scope of work outlined above. It is anticipated that the parties will enter into a standard AIA agreement. We appreciate the opportunity to provide architectural services on the Project. If there are any questions regarding the Proposal, please do not hesitate to call. Cordially, Accepted By Client: t Michael Haddon, AIA Mr. Floyd Batiste H A D D O N+ C O W A N Port Arthur EDC architects collaborative • 1412 Collier Street, Suite C Austin, Texas 78704 ph.512.374.9120 (x.512.374.9122 HADDON + COWAN ARHICTECTS COLLABORATIVE PROFESSIONAL SERVICES AGREEMENT PART II —TERMS AND CONDITIONS This Professional Services Agreement is made and entered into between Port Arthur Economic Development Corporation ( "Client ") and Haddon + Cowan Architects Collaborative. ( "Architect ") 1412 Collier St, Austin, Texas 78704. This Agreement consists of two parts: Part I Proposal - Scope of Services and Compensation; and Part II - Terms and Conditions. ARTICLE 1: PROFESSIONAL SERVICES subsequent Proposals shall be reflected in an appropriate Proposal Amendment. 1.1 Services. In connection with the property described in the Proposal ( "Property"), Architect shall render the professional ARTICLE 4: THE TERM services ( "Services ") for the project described in the Proposal ( "Project ") as outlined in the Proposal and any Amendments. 4.1 Term. Architect shall be retained by Client as of the date Client executes the attached Proposal until the Services have been 1.2 Agreement. The Professional Services Agreement fully performed or until the Architect's Services are terminated includes the Proposal, Amendments to the Proposal, and these under provisions of the Agreement. Architect will pursue Terms and Conditions (collectively, the "Agreement "). completion of Services in accordance with the timely completion specified in the Proposal and any amendments thereto. Architect ARTICLE 2: PROPOSALS shall not be liable or responsible for any delays caused by circumstances beyond Architect's control. 2.1 Scope. The Proposal(s) shall identify the specific scope of Services to be performed by Architect and those subconsultants ARTICLE 5: DUTIES specifically identified as having a direct contractual relationship with Architect ( "Subconsultants ") in the Proposal. The Proposal 5.1 Access. Client will provide Architect with access to the shall also identify the amount and type of compensation for the Property or to any other site as required by Architect for Services. Any services not specifically identified in the Proposal performance of the Services. are excluded unless added as additional services with additional compensation to Architect. 5.2 Client- furnished Data. Client shall provide all criteria and full information as to Client's requirements for the Project, 2.2 Acceptance of Agreement. Client shall authorize and designate a person to act with authority on Client's behalf in Architect shall commence work upon Architect's receipt of the respect to all aspects of the Project, examine and respond promptly properly executed and signed Proposal(s), as may be amended from to Architect's submissions, and give prompt written notice to time to time. If the Agreement is not executed by Client within Architect whenever he observes or otherwise becomes aware of any thirty (30) days of the date tendered, it shall become invalid unless: defect in the work. (1) Architect extends the time in writing; or (2) at the sole option of Architect, Architect accepts Client's oral authorization to proceed Client shall also do the following and pay all costs incident thereto: with the services, in which event the terms of the oral authorization Furnish to Architect core borings, probings and subsurface shall include all the terms of this Agreement. Architect's exploration, hydrographic surveys, laboratory tests and inspections performance of the services under the oral authorization shall be in of samples, materials and equipment and similar data; appropriate reliance on the inclusion of all the terms of this Agreement. professional interpretations of all of the foregoing; environmental assessment and impact statements; architectural or other ARTICLE 3: CHANGES engineering design documents, and any other information previously made available to the Client, which may be required by 3.1 Changes. The Architect and Client may at any time, by Architect, all of which Architect may rely upon in performing its written amendment, make changes within the general scope of Services. individual Proposal(s) or relating to services to be performed. If such changes cause an increase or decrease in the Architect's cost Client shall provide such legal, accounting, independent cost of, or time required for, performance of any services under estimating and insurance counseling services as may be required individual Proposals, an equitable adjustment shall be made and for the Project, any auditing service required in respect of reflected in a properly executed Amendment. contractor(s)' applications for payment, and any inspection services to determine if contractor(s) are performing the work. 3.2 Regulatory Changes. In the event that there are modifications or additions to regulatory requirements relating to the 5.3 Other Information. Architect will rely upon commonly services to be performed under this Agreement after the date of used sources of data, including database searches and agency execution of this Agreement, the increased or decreased cost of contacts. Architect does not warrant the accuracy of the performance of the services provided for in this Agreement and information obtained from those sources and has not been requested to independently verify such information. i conditions at a later date. This paragraph does not obligate 5.4. Ownership of Documents. All designs, drawings, Architect to visit the site. specifications, documents, and other work products of the Architect (collectively, the "Documents "), whether in hard copy or electronic 5.9 Opinions of Cost. Should Architect provide any cost form, are instruments of service for the services and are owned by opinions, it is understood that those opinions are based on the the Architect regardless of whether or not services are completed. experience and judgment of Architect and are merely opinions. Reuse, change or alteration of the Documents by the Client or by Architect does not warrant that actual costs will not vary from those others acting through or on behalf of the Client is not permitted opinions because, among other things, Architect has no control without the written consent of Architect. The Architect grants to over market conditions. Client a nonexclusive license to reproduce the Documents solely for the purpose of constructing and maintaining the Project. Any 5.10 Construction Observation. If construction phase termination of the Agreement prior to final completion of services are included in the Services, the Architect will periodically construction of the Project shall terminate this license. Upon such visit the Project during construction on the number of occasions termination, and unless otherwise agreed by Architect in writing, indicated in the Proposal, or as Architect determines in Architect's the Client (and any third party who received copies of the sole opinion, to become generally familiar with the progress and Documents from Client) shall refrain from making further quality of the contractors' work and to determine if the work is reproductions of the Documents and shall return to the Architect proceeding in general accordance with the Contract Documents. within seven days of termination all originals and reproductions in The Client has not retained the Architect to make detailed the Client's possession, custody and control. ANY REUSE, inspections or to provide exhaustive or continuous Project review CHANGE OR ALTERATION BY THE CLIENT OR THIRD and observation services. The Architect does not guarantee the PARTIES IS AT THEIR OWN RISK AND CLIENT AGREES TO performance of, and shall have no responsibility for, the acts or HOLD HARMLESS AND INDEMNIFY THE ARCHITECT, ITS omissions of any contractor, subcontractor, supplier or any other OFFICERS, PARTNERS, EMPLOYEES, AND entity furnishing materials or performing any work on the Project. SUBCONTRACTORS FROM ALL CLAIMS, DAMAGES, Client acknowledges that Architect is not responsible for any LOSSES, EXPENSES AND COSTS (INCLUDING failure of any contractor, subcontractor, supplier or any other entity ATTORNEYS' FEES), INCLUDING, BUT NOT LIMITED TO, furnishing materials or performing any work on the Project to CLAIMS FOR ARCHITECT'S ALLEGED NEGLIGENCE, construct the Project or manufacture materials in accordance with ARISING OUT OF OR RELATED TO SUCH AUTHORIZED OR the Documents or any applicable legal requirements. Architect UNAUTHORIZED REUSE, CHANGE OR ALTERATION. shall not be responsible for the means, methods, techniques, sequences or procedures of construction selected by contractor(s) 5.5. Reporting Obligations. Client has responsibility for or the safety precautions and programs incident to the work of complying with all legal reporting obligations. Nothing in the contractor(s). Agreement precludes Architect from providing any notices or reports that it may be required by law to give to governmental 5.11 Permits. Client is responsible for obtaining and entities. complying with all required permits or other approvals of, and for giving any required notices to, all governmental and quasi - 5.6 Laboratory Services. In performing services, Architect governmental authorities having jurisdiction over the Services or may request that Client provide independent testing laboratory the Property. Before Architect performs the Services, Client will services. Architect will rely on the accuracy of the testing provide Architect evidence satisfactory to Architect that all laboratory services. Architect will not, and Client shall not rely required permits or other approvals have been obtained and that all upon Architect to, check the quality or accuracy of the testing required notices have been given. Client will provide to Architect laboratory's services. copies of any such permits or any such notices, together with any other relevant information that will alert Architect to the 5.7. Changed Conditions. The Client shall rely on the requirements of such permits, approvals, or notifications. Architect's judgment as to the continued adequacy of the Agreement in light of occurrences or discoveries that were not ARTICLE 6: COMPENSATION OF SERVICES originally contemplated by or known to the Architect. Should Architect call for contract renegotiation, the Architect shall identify 6.1 Compensation of Services. Architect's compensation the changed conditions necessitating renegotiation and the for services shall be set forth in individual Proposal(s). Architect and the Client shall promptly and in good faith enter into renegotiation of this Agreement. If the terms cannot be agreed to, 6.2 Compensation. Client agrees to pay Architect for the parties agree that either party has the right to terminate the Services in accordance with the Agreement. Expenses directly Agreement. related to these Services, including reproduction, travel, long distance telephone bill, express mail, special deliveries and 5.8 Site Visit. All conclusions, opinions and subcontractor expenses shall include a ten percent (10 %) markup recommendations relating to site issues will be based upon site on cost. conditions at the Property as they existed at the time of Architect's site visit, if any. Any report should not be relied upon to represent 6.3 Pavments. Architect will invoice Client monthly in accordance with the terms and conditions of the Proposal, and 1 amendment(s) for Services and reimbursables. Client agrees to ARTICLE 8: RELATIONSHIP OF PARTIES promptly pay Architect the full amount of each such invoice upon receipt. In no event shall Architect's failure to bill monthly 8.1 Independent Contractor. It is understood that the constitute default under the terms and conditions of this relationship of Architect to Client shall be that of an independent Agreement. contractor. Neither Architect nor employees of Architect shall be deemed to be employees of Client. 6.4 Right to Stop Performance. If Client does not pay any amount due to Architect within thirty (30) days after the invoice ARTICLE 9: LIMITATIONS OF LIABILITY date, Architect may, upon three (3) additional days verbal or written notice to Client, stop performance of the Services until 9.1 Limitation of Liability. TO THE FULLEST EXTENT payment of the amount owed has been received. PERMITTED BY LAW, THE TOTAL LIABILITY OF ARCHITECT, ITS EMPLOYEES, OFFICERS, 6.5 Interest. Payments due and unpaid to Architect under SUBCONSULTANTS AND SUBCONTRACTORS, TO CLIENT the Agreement shall bear interest at the rate of twelve percent OR ANY PARTY CLAIMING BY, THROUGH OR UNDER (12 %) per annum, or lesser if required by law, calculated from the CLIENT, FOR ANY AND ALL INJURIES, CLAIMS, LOSSES, date of the invoice, if the payment is not made within thirty (30) EXPENSES, OR DAMAGES WHATSOEVER FROM ANY days of the date of the invoice. CAUSE OR CAUSES, INCLUDING, BUT NOT LIMITED TO, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF 6.6 Attorney's Fees. In the event Architect's invoices for WARRANTY, NEGLIGENCE, OR ERRORS OR OMISSIONS Services are given to any attorney for collection, or if suit is SHALL NOT EXCEED THE ARCHITECT'S TOTAL FEE. brought for collection, or if they are collected through probate, NOTWITHSTANDING ANY OTHER PROVISION OF THE bankruptcy, or other judicial proceeding, then Client shall pay AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE Architect all cost of collection, including the maximum attorney's OTHER FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, OR fees allowed by law and court costs, in addition to other amounts CONSEQUENTIAL DAMAGES INCURRED DUE TO THE due. FAULT OF THE OTHER PARTY, REGARDLESS OF THE NATURE OF THIS FAULT OR WHETHER IT WAS ARTICLE 7: TERMINATION OF SERVICES COMMITTED BY THE CLIENT OR BY ARCHITECT, THEIR EMPLOYEES, AGENTS, SUBCONSULTANTS, OR 7.1 Termination. This Agreement may be terminated, either SUBCONTRACTORS. CONSEQUENTIAL DAMAGES by Client or by Architect, without cause, at any time prior to INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF USE AND completion of Architect's services, upon seven (7) days written LOSS OF PROFIT. notice to the other at the address of record. Upon receipt of written notice from Client to discontinue work, the Architect shall 9.2 No Certification. Architect shall not be required to sign discontinue work under this Agreement. Such termination shall any documents, no matter by whom requested, that would result in release Architect from any further obligation to provide Services to Architect having to certify, guarantee, or warrant the existence of Client on this Agreement, but all obligations of Client shall conditions whose existence Architect cannot ascertain. The Client continue. In the event Client terminates the Agreement based on also agrees not to make resolution of any dispute with Architect or Client's reasonable opinion the Architect has failed or refused to payments of any amount due to Architect in any way contingent prosecute the work efficiently, promptly or with diligence, the upon Architect's signing any such certification. Architect shall have at least ten (10) days, from the receipt of written notification by Client, to cure such failure to perform in 9.3 Asbestos or Hazardous Materials. It is acknowledged accordance with the terms of this Agreement or Proposal(s). by both parties that Architect's scope of services does not include any services related to asbestos or hazardous or toxic materials. In Client waives any and all claims it has against Architect arising out the event Architect or any other party encounters asbestos or of termination of this Agreement by Architect. Client waives any hazardous or toxic materials at the Property, or should it become and all claims, causes of action, or damages that it has or may have known in any way that such materials may be present at the against Architect for failure to perform further services under this Property or any adjacent areas that may affect the performance of or any other Agreement with Client. Architect' s Services, Architect may, at its option and without liability for consequential or other damages, suspend performance 7.2 Compensation in Event of Termination. Upon of Services on the Project until the Client retains appropriate termination by either Client or Architect, Client shall pay Architect specialist consultant(s) or contractor(s) to identify, abate, and/or with respect to all contracted Services rendered and expenses remove the asbestos or hazardous or toxic materials and warrant incurred before termination an amount fixed by applying the that the Property is in full compliance with applicable laws and Architect's standard hourly rates, in force at the time of regulations. termination, to all Services performed to date, in addition to termination settlement costs the Architect reasonably incurs 9.4 Delays. Architect is not responsible for delays caused by relating to commitments which had become firm before the factors beyond Architect's reasonable control, including but not termination. limited to delays because of strikes, lockouts, work slowdowns or stoppages, accidents, acts of God, failure of any governmental or r 1 other regulatory authority to act in a timely manner, failure of the drafting party shall not be employed in the interpretation of the Client to furnish timely information or approve or disapprove of Agreement or any amendments or exhibits. Architect's Services or work product promptly, or delays caused by faulty performance by the Client or by contractors of any level. 10.7 Successor and Assigns; No Third Part Beneficiaries. When such delays beyond Architect's reasonable control occur, the Client, for himself and partners, if any, and Architect, for itself, Client agrees Architect is not responsible for damages, nor shall each binds himself or itself and its successors, executors, Architect be deemed to be in default of this Agreement. In the administrators and assigns to the other party to this Agreement and event such delay exceeds ninety (90) days, Architect shall be to partners, successors, executors, administrators and assigns of entitled to an extension of time equal to the delay and an equitable such other party in respect to all covenants of this Agreement. adjustment in compensation. In the event Architect is delayed by Neither Client nor Architect shall assign, sublet, or transfer his the Client and_such delay exceeds thirty (30) days, Architect shall interest in this Agreement without the written consent of the other. be entitled to an extension of time equal to the delay and an Nothing herein shall be construed as giving any rights or benefits equitable adjustment in compensation. hereunder to anyone other than Client and Architect. Client and Architect agree that there are no third party beneficiaries to this 9.5 Proiect Enhancement. If, due to Architect's error or Agreement. Client's representative signing below warrants that he omission, any required item or component of the Project is omitted or she has full authority to bind Client to this Agreement and from Architect's documents, Architect shall not be responsible for further warrants that Client has an ownership interest in the real paying the cost to add such item or component to the extent that property that is part of the Project. Client's representative signing such item or component would have been otherwise necessary to below agrees to indemnify, save, and hold Architect harmless for the Project or otherwise adds value or betterment to the Project. In any and all claims, causes of action, and damages that may arise no event will Architect be responsible for any cost or expense that against Architect if the representations contained in this Paragraph provides betterment, upgrade, or enhancement of the Project, are not correct. ARTICLE 10: MISCELLANEOUS Nothing in the Agreement restricts Architect's ability to hire subconsultants or others in connection with the Services. 10.1 Entire Agreement. The Agreement contains the entire Notwithstanding anything to the contrary in this Agreement, agreement between Architect and Client, and no oral statements or Architect shall have no obligation to hire any subconsultants unless prior written matter shall be of any force or effect. The Agreement the services of subconsultants are specifically included in the may be modified only by written document executed by both Proposal. The Services and any reports or other documents parties. prepared under this Agreement are for the sole benefit and sole use of Client and are not for the use of any other person. Only Client 10.2 Modifications. No one has authority to make variations may rely upon the Agreement and the Services, unless the Architect in, or additions to, the terms of this Agreement on behalf of gives Client prior and specific written approval. Architect other than one of its officers, and then only in writing signed by him. 10.8 Not Used 10.3 Governing Law. The Agreement shall be governed by 10.9 Mediation. Any claim, dispute or other matter in and construed in accordance with the laws of the State of Texas. question arising out of or related to this Agreement shall be subject to non - binding mediation as a condition precedent to the institution 10.4 Venue. Architect and Client agree that the services will of legal proceedings by either party. If such matter relates to or is be performed or partially performed in Jefferson County, Texas, the subject of a lien arising out of the Architect's services, the and the venue of any action under the Agreement shall be Architect may proceed in accordance with applicable law to exclusively in Jefferson County, Texas. comply with the lien notice or filing deadlines prior to resolution of the matter by mediation or other legal proceedings. 10.5 Severabilitv. If any provision of the Agreement is held to be illegal, invalid or unenforceable under present or future laws, Each party agrees to include a similar mediation provision in all such provision shall be fully severable and the Agreement shall be agreements with independent contractors and consultants retained construed and enforced as if such illegal, invalid or unenforceable for the Project and to require all independent contractors and provision is not a party hereof, and the remaining provisions shall consultants also to include similar mediation provisions in all remain in full force and effect. In lieu of any illegal, invalid or agreements with their respective subcontractors, suppliers, and unenforceable provision, there shall be added automatically as a Subconsultants, thereby providing for mediation as the initial part of the Agreement, a provision as similar in terms to such method for dispute resolution between the parties to all those illegal, invalid or unenforceable provision as may be possible and agreements. be legal, valid and enforceable. The parties shall share the mediator's fee and any filing fees 10.6 Construction of Agreements. The parties acknowledge equally. The mediation shall be held in the county where the that each party and, if it so chooses, its counsel have reviewed and Project is located, unless another location is mutually agreed upon. revised the Agreement and that the normal rule of construction to Agreements reached in mediation shall be enforceable as settlement the effect that any ambiguities are to be resolved against the agreements in any court having jurisdiction thereof. 1 any provision of the Agreement relating to any such right or 10.10 No Warrant Architect makes no warranty, either obligation shall be deemed to survive the termination of the expressed or implied, as to Architect's findings, recommendations, Services or (b) any continuing obligation, liability or responsibility Documents, or professional advice. Any warranties or guarantees of Architect and of Client which would otherwise survive contained in any purchase orders, contracts, certifications, termination of the Services. requisitions, or notices to proceed issued by the Client are specifically objected to and excluded. Client recognizes that 10.13 Texas Board of Architectural Examiners. The Texas neither Architect nor any of Architect's Subconsultants or Board of Architectural Examiners has jurisdiction over complaints subcontractors owes any fiduciary responsibility or duty to Client. regarding the professional practices of persons registered as Architects in Texas. 10.11 Corporate Liability. Client understands and agrees that Architect is a business entity that has contracted to perform Texas Board of Architectural Examiners services, and any services provided by Architect's employees, Hobby Building agents or officers are not provided in their individual capacity. 333 Guadalupe Street, Suite 2 -350 Client will not make any claim or demand against any of Austin, Texas 78711 Architect's employees, agents or offices in their individual Ph # 512- 305 -9000 capacity. 10.12 Survival of Provisions. Termination of the Services for any reason whatsoever shall not affect (a) any right or obligation of any party that is accrued or vested prior to such termination, and Architect: Client: lit. j -. \i•i ) Port Arthur Economic Development Corporation Haddon + Cowan Architects Collaborative Name: Mike Haddon, AIA Name: Chief Floyd ive Officer Title: Principal Date: Date: 19 December 2012 Address: 4173 39 Street Prot Arthur, Texas 77642