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Home My WebLink About33517 / 85-17t ; August 1� 1985 # 17 RESOLUTION (CARRIED LOST LAID OVER WITHDRAWN ) PURPOSE: DESIGN AND DRAWINGS FOR 400 BLOCK N. MAIN INITIATED BY: DEPARTMENT OF COMMUNITY DEVELOPMENT BE IT RESOLVED by the Common Council of the City of Oshkosh that the proper City officials are hereby authorized and directed to enter into the attached Contract with Yarbro-Kempinger Architects to prepare plans and drawings for beautification of the 400 Block N. Main Street. Funds for this purpose are hereby appropriated from Account No. 339-989 - Special Assessments - Other. - 23- SUBMITTED BY APPROVED /� e w RESOLUTION # 17 THE AMERICAN INSTI�UTE OF ARCHITECTS � �"� "'ii�� n �j �� x"� �3 � � ��f --_ AIA Document 6141 1��.. f :r. . .A: ' ,� ':, • ., C� L .a, .r. �, .s�. .• ►., . �� .�:' . �, .. . .. � .. � . �. . 1977 EDITION 7HI5 DO�UMENT HAS IMPORiANT LfGAL CONSEQUENCES; CONSUL7A710N WITH A:V ATTORNEY IS ENCOURAGEU WITH RESPK7 TO !TS CO64PLETlON OR blODfFlCATION AGRFEMENT made as of the First (lst) day of August in the year of Nineteen Hundred and Eighty-Five BETWEEN the O�vner: and the Architect: THE CITY OF OSHKOSH 215 Church Avenue Oshkosh, Wisconsin 54901 YARBRO-KEMPINGER ARCHITECTS, TNC. 1018 West South Park Avenue Oshkosh, Wisconsin 54901 Fo� the following Project: Undude detarled destrrption oi Projec! location and stopeJ 400 BLOCK MAIN STREET STRE�TSCAPE PROJECT Oshkosh, Wisconsin Architect's 24 July 1985 Proposal Letter is attached to this Agreement, The O�vner and the Architect agree as set forth below. Copyrigh[ thi7, "1926, t9a8, t9i1, 9953, 1958, '1961, '105�;, �g66, t967, l9'D, 191.1, OO 19]7 hy The Amencan Institute of ArdiiteUS, 1735 Kew Ymk Arrnuc, N.1\C, \VashlnFton, 0.0 20006. ReproduUlon of �he ma[erial herein or suhy�nii,l quotalion of iis pmvisions wit7wut pemiissfon o( Ihe AIA violates the mpyright i�wt ot Ihe United States and aill 6e subiect to legal pmsecWion. AIA DOCUMF.NT Bt�l • OA1�NER-ARCHIiECI AGBEf:b1ENT • iHIRTCENiH FDITION • �Ct1' 19;7 • AI,}y • OO l9]] 7HE ANERICAN INSTIIUTE OF ABCHITCCTS, �]j5 NEW YORK AVEKUE, N.AF., lCrASHIKG70A', D.0 20006 FILE N0, 8532 - 23a - 6141-1977 1 RESOLUTION # 17 TERMS AND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT ARTICLE � ARCHITECT'S SERVICES AND RESPONSIBILITIES BASIC SERVICES The ArchitecYs Basic Services consist of the five phases described in Paragraphs 1.1 through 1.5 and ind!:de normal s[ructural, mechanical and electrical engineering services and any o[her services induded in Artide 15 as part of Basic Services. 7,� SCHEMATIC DESIGN PHASE 1.1.1 The Architect shall review the program fumished by the Owner to ascertain the requirements of the Project and shall review the understanding or such reGuirements with the Owner. 1.1.2 The Architect ahali provide a preliminary evalua- tion oi the program and the Project budget requiremen[s, each in terms of the other, subject to Ihe limi[ations set forth in Subparagraph 3.29. 1.�.3• The Architect shall review with [he Owner alterna- tive approaches to design and construction of the Project. 1.1.4 Based on the mutually agreed upon program and Project budge[ requirements, the Architect shall prepare, for approval by the Owner, Schematic Design Documents mnsisting of drawings and other documents illustrating the scale and relationship of Project components. 1.1.5 The Architect shall submit to the Owner a State- ment of Probable Construction Cost based on curren[ area, volume or other unit costs. �,z DESIGN DEVELOPMENT PHASE 1.2.1 Based on the approved Schematic Design Docu- ments and any adjustments authorized by the Owner in the program or Project budget, the Architect shall pre- pare, for approval by [he Owner, Design Development Documents consisting oi drawinJs and other documents to fix and describe the size and character of the entire Project as to architedural, structural, mechanical and eleo- trical svstems, materials and such other elements as may be appropn, te. 1.2.2 The Architect shall cubmit to the Owner a further Statement of Probable Construction Cost. 1.3 CONSTRUCTION DOCUMENTS PHAS[ 1.3.1 Ba<ed on the appro��ed Design Development Uoc- umenti and anq further adjustments in the scope or qual- ity of the Project or in the Project budget authorized by the O��ner, (he Architect shail prepare, for approval by the O�+•ner, ConsVUCtion Documents consisting of Draw- ings and Specificitions setting forth in detail the require- ments for the construction of the Project. 1,3.2 The Architect shall assist the Owner in the prepara- tion of the necessary bidding intormation, bidding fonns, the Conditions of the Contrnct, and the form of Agree- ment beh�'een Ihe Owner and ihe Contractor. 13.3 The Architect shall adaise the Ow�ner of any adjust- ments to previous Statements of Probable Construction Cost indicated by changes in requirements or general market conditions. '1.3.4 The Architec[ shall assist the Owner in connection with [he Owner's responsibility for filing documents re- quired tor the approval of govemmental authorities hav- ing jurisdiction over Ihe Project. � �,q BIDDING OR NEGOTIATION PHASE 1.4.7 The Architect, following the Owner's approval of the Construction Documents and of the latest Statement of Probable Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals, and assist in awarding and preparing contracts for construction. 1S CONSTRUCTION PHASE—ADA1lNISTRATIIN OFTHECONSTRUC710N CCNTRACT 1.5.� The Construction Phase will commence with the award of the Contrad for Construction and, together with the ArchitecCs obligation to provide Basic Services under this Agreement, will �terminate when final payment to the ConVactor is due, or in the absence of a final Certificate (or Payment or ot such due date, sixty days after the Date of Substantial Completion of the Work, whichever otcurs tir5t. 15.2 Unless otherwise provided in this Agreement and incorporated in the Contract Documents, the Architeci shall provide administrztion of the Contract for Construo- tion as set forth below and in the edition of AIA�Docu- ment A?01, General Conditions of the Contract for Con- struction, curren[ as of the date of this Agreement. 1.5.3 The Architect shall be a representative of [he Owner during the Construction Phase, and shall advise and mnsult Hith the O�+ner. Instructions to the Contrao- tor shall be fonvarded through the ArchitecC The Archi- tect shall haee authoriry ro act on behalf of the O�mer only to the extent provided in the Contract Documents unless other�vise modified by written instrument in ar mrdance with Subparagraph 1.5.16, 1.5.4 The Architcct shal! visit the site at inten-als ap- propriate to the stage of mnstruction or as otherwise a�reed by the Architect in writing to become generally familiar with the progress and quality of the Vl'ork and to determine in general it the \Vork is proceeding in accord- ance with Ihe Contract Documen[s. However, the Archi- tect shall not be required to make exhaustive or con- tinuous on-site inspections to check the qualiry or quan- titv of the b1'ork. On the basis of such on-site observa- tions as an architect, the Architect chall keep the Owner intormed of the progress and quality of the �Nork, and shall endea��or to guard the O�vner against defects and deficiencies in the �Nork of the Contrattor, 1.5.5 The Ardiitect shali not have control or charge of and shall not be responsible (or mnstruction means, method;, techniques, sequences or procedures, or for sa(ety precautions and programs in connection with the VV'ork, (or the acts or omi>sions of the ConGactor, Sub- ni:� oocun�enr ni+� • o�c��r�-�ecr+irecr rcerr�+En�r • i iiielir�rH eoinon •�ou� ��r • ni.-�� • o�en TIIE A�VERICAiA 1�A)�ITUTC OF TPCIIITECTS, �:35 :ARl' YORK nV'EVUL, N.AA'., N)ASHI�AGTO.V, D.C. ?Q�aG FILE NO. 8532 — 23b — B141-1977 3 contractors or any other persons performing any of the Work, or for the failure of any of them to carry out the Work in accordance with the Contract Documents. 1.5.6 The Architect shall at all times have access to the Work wherever it is in preparation or progress. 1.SJ The ArchitecY shall determine the amounts owing to the Contractor based on observations at the site and on evaluations of the Contracror's Applications for Payment, and shall issue Certificates for Payment in such amounts, as provided in the Contract Documents. 1.5.8 The issuance of a Certificate for Payment shall constitute a representa[ion by the Architect to the Owner, based on the ArchitecYs observations at Ihe site as pro- vided in Subparagraph �.5.4 and on the data comprising the Contractor's Appiication for Payment, that the Work has progressed to the point indicated; that, to the best of the.Architect's knowledge, information and belief, the qual- ity of thP Work is in accordance with the Contrad Docu- ments (subject to an evaluation of the Work for con- formance with the Cqntract Documen[s upon Substantiai Completion, to the results of any subsequent tests re- quired by or performed under the Contract Documen[s, to minor deviations from the Contract Documents cor- rectable prior to completion, and to any speci(ic qualifica- tions stated in the Certificate for Payment); and tha[ Ihe Contractor is entitled to paymen[ in the amount certified. However, the issuance of a Certificate for Payment shall not be a representation that the Architect has made any examination to ascertain how ard for what purpose the Contracror has used the moneys paid on account of the Contract Sum. 1.59 The Archited shall be the interpreter of the re- quirements of the Gontract Documents and the judge of the performance [hereunder by both [he Owner and Contractoc The Architect shall render interpretations neo- essary for the proper execution or progress of the Work with reasonable promp[ness on written request of either [he Owner or the Contractor, and shall render written de- cisions, w�ithin a reasonable time, on all daims, disputes and other matters in question between the O�vner and the Contracror relating to the execution or progress of the Work or the in[erpretation of the Contract Documents. �5.70 In[erpretations and decisions of the Architect shall be consistent with the intent of and reasonably inierable from the Contract Documents and shall be in written or graphic form. In the capacit}� of interpreter and jud�e, the Architect shall endeavor to secure faithful perform- ance by both the O�vner and the Contractor, shall not show partiality to either, and shall not be liable for the result of any interpretation or decision rendered in goad faith in such capacity. 1.5.�1 The Architect's decisions in matters relating to artistic effect shail be final if concistent ��ith the intent of the Contrac[ Documents. The Architect's decisions on any other daims, disputes or other matterc, indudina those in question behveen the O�vner and the Contractor, shall be subject to arLitration ac provided in this Agree- ment and in the ConVact Documenis. 7.5.12 7he Architect shall have authority to reject Vdork which does not conform to the Contract Documents. lNhene�-er, in the ArchitecYs reasonable opinion, it is 4 B741-'1977 I'ILE N0. Q532 RESOLUTION # 17 necessary or advisable for the implementation of tbe intent of the Contract Documents, the Architect wiil have author- iry to require speciai inspection or testing of the Work in accordance with Ihe provisions of the Contract Docu- ments, whether or not such Work be then fabricated, in- stalled or comple[ed. 1.5.13 The Architect shall review and approve or take othcr appropriate action upon the Contrador's submittals such as Shop Drawings, Product Data and Samples, but only for conformance with the design concept of the Work and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay. The ArchitecCs ap- proval of a specific i[em shall not indicate approval of an assembly of which Ihe item is a component. 1.5.'14 The Architec[ shall prepare Change Orders for the Owner's approval and ezecution in accordance wi[h zhe Contract Documents, and shall have authority to order minor changes in Ihe Work not involving an adjustment in the Contract Sum or an extension of Ihe Contract Time which are not inconsistent with the intent of the Contract Documents. 1.5.75 The Architect shall conduct inspections to deter- mine the Dates of Substantial Completion and final com- pletion, shall receive'and forward to the Owner for the Owner's review written warranties and related documents required by the Contract Documents and assembied by the Contractor, and shall issue a final Certificate for Pay- ment. 1.5.16 The extent of the duties, responsibilities and lim- itations of authority of ihe Architect as the Owner's rep- resentative during construttion shall not be modified or extended without written consent of the Owner, the Con- tractor and the Architect. 1,6 PROJECT REPRESENiATIOU BEYOND BASIC SERVICES 1.6.1 If the Owner and Architect agree that more ex- tensive mpresentation at the site than is described in Paragraph 1.5 shall be provided, the Architect shall pro- vide one or more Project Representatives to assist the Architect in carrying out such responsibilities at the site. 1.6.2 Such Project Representatives shall be selected, em- pioyed and directed by the Architect, and the Architect shail be compensated therefor as mutually agreed be- hveen the Owner and the Architect as set forth in an ex- hibit appended to this Agreement, which shall describe Ihe duties, responsibilities and limitations of authority of such Project Representatives. 1.6.3 Through the obsen-ations by such Project Repre- sentatives, the Architect shall endea��or to provide further protection for the O�aner against defects and deficiencies in the �ti'ork, but the furnishing of wch project representa- tion shall not modify the rights, responsibilities or obliga- tions of the Architect as described in Paragraph �.5. 7,7 ADDITIONAL SERVICE$ The followino Scrvices are not induded in 6asic Services unless so identified in Article 15. They shall be provided if authorized or confirmed in ��riting by the Oevner, and thcy shall be paid for by the Owner as provided in this Agreement, in addition ro the compensation for Basic Scrvices. AIA DOCUMFNT Bll1 • OAtiNEB�ARCHI1fCi' AGRELMLNT • TIIIBTECNTH EDITIOA • Jl1LA' 147; • AIAQ . OO l9]] IIIE �,VERICiAN INSTIIUTE OF ARCHIiEQS, 1;35 NCl1' 1'OBK AV&VUE, N.AY., AA'.ASHINGTO.V, D.C. 40006 - 23c - 1J.1 Providing analyses of the Owner's needs, and pro- gramming the requirements of the Project. 1J.2 Providing financial feasibility or ocher special studies. 1J.3 Providing planning surveys, site evaluations, envi- ronmental studies or comparative studies of prospective sites, and preparing special surveys, studies and submis- sions required for approvals of govemmentai authorities or others having jurisdiction over the Project. 1J.4 Providing services relative ro future facilities, sys- tems and equipment which are not intended to be con- struded during the ConsVUCtion Phase. 17.5 Providing services to investigate existing conditions or facilities or to make measured drawings thereof, or to verify the accuracy of drawings or o[her information fur- nished by the Owner. 1J.6 Preparing documents of altemate, separate or sequential bids or providing exVa services im m�nection with bidding, negoti�[ion or construction prior to the completion of the Construction Documents Phase, when requested by the Owner. "IJJ Providing coordina[ion of Work performed by separate contractors or by the Owner's own forces. �J.B Providing services in connection with the work of a construction manager or separate consultants re[ained by the Owner. 1J.9 Providing Detailed Estimates of Construction Cost, analyses of owning and operating costs, or detailed quan- tity surveys or inventories of material, equipment and labor. 17.10 Providing interior design and other similar ser- vices required for or in connection with the seledion, procurement or installa[ion of furniture, furnishings and related equipment. '1J.11 Providing services for planning tenan[ or rental spaces. 1J.12 h1aking re��isions in Drawings, Specifications or other documents when such revisions are inconsisten[ with written approvals or instruc[ions previously given, are required by the enactment or revision of codes, la�vs or regulations subsequent to the preparation of such doc- uments or are due to other causes not solely within the mntrol of the Architect. 1J.13 Preparing Drawings, Speciiications and suppor[ing data and providino other services in connection with Change Orders to Ihe extent that the adjustment in the Basic Compensation resulting trom the adjusted Con- sViiction Cost is not tommensurate with the sen-ices re- quired of the Architect, provided such Chan�e Orders are required by causes not solely �vithin the control of the Architect. 1JJ4 Making im�estigations, surveys, valuations, im-en- tories or detailed appraisals of existing facilities, and serv- ices required in connection with construction per(ormed by the Owner. 7JJ5 Providing consulWtion conccrning replacement of any Work damaged by fire or other cause durinc; mn- RESOLLTPION # 17 struction, and fumishing services as may be required in connection with the replacement of such Work. 1.7.16 Providing services made necessary by the default of the Contractor, or by major defects or deficiencies in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the Contract for Construction. ' 1J.V Preparing a set of reproducible record drawings showing significant changes in the Work made during mnstruction based on marked-up prints, drawings and other data fumished by the Contractor to the Architect. 1J.18 Providing extensive assistance in the utilization of any equipment or system such as initial start-up or [esting, adjusting and balancing, preparation of operation and maintenance manuals, training personnel for operation and maintenance, and consultation during operation. 1JJ9 Providing services after issuance to the Owner of the final Certiticate for Payment, or in [he absence of a final Certifica[e for Payment, more than sixty days after the Date of Substantial Completion of the Work. 1J.20 Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration pro- ceeding or legal proceeding. 1J.21 Providing services of mnsultants for other than the normal architedural, structural, mechanical and elec- trical engineering services for the Projec[. 1.722 Providing any other services not otherwise in- cluded in this Agreement or not customarily furnished in accordance with generally accepted architecwral practice. y,g TIME 1.8.1 The Architect shall perform Basicand Additional Sercices as expeditiousiy as is consistent with professional skiil and care and the orderly progress of the N'ork. Upon reques[ of [he Owner, the Architect shall submit for the Owner's approval a schedule for the performance of the ArchitecYs services which shail be adjusred as required as the Project promeds, and shall include allowances for peri- ods of time required for the Owner's review and zpproval of submissions and for approvals of authorities having jurisdiction oeer the ProjecL This schedule, when approved by the Owner, shali not, except for reasonable cause, be e�ceeded by the Architect. ARTICLE 2 THE OWNER'S RESPONSIBILITIES 2.1 The Owner shall provide full information regarding requirements for ttie Projec[ induding a program, which shall set forth the Owner's design objedives, constrainls and criteria, induding space requirements and relation- ships, Flexibility and expandability, special equipment and s�stems and si[e requirements. 2.2 If the O�vner provides a budget for the Project it shall indude contingencies for bidding changes in the \Vork during construction, and other costs �ahich are the responsibility of the Owner, induding those described in this Artidc 2 and in Subparagraph 3.1.2. The O�sner shall, at the requcst of the ArchitecC, provide a statement of funds available for the Project, and their source. AIA ooeun�ENr olat • o�vNeR-nRUU7ECT ncBEtnttNr • TH�I:� E[VTH [Un�aV • NL1' t977 • AIA� . OO �9%7 TYIp AMCRIGAN INSTITUTE OF ARCHITECTS, 1;35 NEVA' 1'ORK AA'EVUE, N.AA'-. AA:AShILVGTON, D.0 ]W06 FILE NO. 8532 - 23d - 6141-1977 5 23 The Owner shall designate, when necessary, a rep- resentative authorized to act in the Owner's behalf with respect to the Project. The Owner or suth authorized representative shall examine the documents submitted by the Architect and shali render decisions pertaining thereto prompdy, to avoid unreasonable delay in the progress of the Architect's services. 2.4 The Owner shall fumish a legal description and a certified land survey of the site, giving, as applicable, grades and lines of street�, alleys, pavements and adjoin- ing property; rights-of-way, restrictions, easements, en- croachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and mmplete data pertaining to existing buildings, other improvements and trees; and full information conceming available serv- ice and utility lines both pubiic and private, above and below grade, induding inverts and depths. 2.5 The Owner shall furnish the sercices of soil engi- neers or other consultants when such services are deemed necessary by the Architect. Such services shall indude test borings, test pits, soil bearing values, percolation tests, air and water pollution tests, ground corrosion and resistivity tests, including necessary operations for determining sub- soil, air and water conditions, with reports and appropri- ate professional recommendations. 2.6 The Owner shall fumish structural, mechanical, chemical and other laboratory tests, inspections and re- ports as required by law or the Contract Documents. 2.7 The Owner shall furnish all legal, accounting and in- surance counseling services as may be necessary at any time for the Project, induding such auditing services as the Owner may require [o verify the Contractor's Applica- ti�ns for Payment or to ascertain how or for what pur- poses the Contractor uses the moneys paid by or on be- half of the Owner. 2.6 The services, information, surveys and repor[s re- quired by Paragraphs 2A Ihrough 2.7 indusive shail be fumished at the Owners expense, and the Architect shall be entitled ro rely upon the accuracy and completeness thereof. 2.9 If the Owner observes or othenvise becomes aware of any fault or defect in [he Project or noncontormance with the Contract Documents, promp[ written notice thereof shall be given by the Owner to the Architect. 2.10 The Owner shall fumish required information and services and shall render approvals and decisions as es- peditiously as necessary for the orderly progress o( the Architect's services and of the ANork. ARTICLE 3 COidSTRUCTION COST 3.1 DEfINITION 3J.� The Construction Cost shall be the total cost or estimated cost to the Orvner of all elements of the Project designed or specified by the Architect. 3.�.2 The Construction Cost shail indude at current market rates, induding a reasonable allo�vancc for over- head and pro(it, the cost of labor and mtterials fumished by the Owner and any equipment �vhich has bcen de- 6 6141-1977 RESOLUTION # 17 signed, specified, selected or specially provided for by Ihe Architect. 3.'1.3 Construction Cost does not indude the compen- sation of the Architect and the ArchitecYs consultants, the cost of the land, rif;hts-of-way, or other costs which are the responsibility of the Owner as provided in Arti- cle 2. 3,2 RESPONSIBILITY FOR CONSTRUCTION COST 3.2.1 Evaluations of the O�vner's Project budget, State- ments of Probable Construction Cost and Detailed Estimates of Construction Cost, if any, prepared by the Archi[ect, represent the ArchitecYs best judgment as a design professional familiar with the construction indus- try. It is recognized, however, that neither the Architect nor the Owner has control over the cost of labor, mate- riais or equipment, over the Contractor's methods of de- termining bid prices, or over tompetitive bidding, market or negotiating mnditions. Accordingly, Ihe Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from the Project budget proposed, established or approved by the Owner, if any, or from any Statement of Probable Construction Cost or other mst estimate or evaluation prepared by Ihe Archi- tect. 32.2 �b fixed limit of Construction Cost shall be estab- lished as a condition of this Agreement by the furnishing, proposal or establishment of a Project budget under Sub- paragraph 1.1.2 or Paragraph 22 or otherwise, unless such fixed limit has been agreed upon in ��riting and signed by the parties hereto. If such a fixed limii has been estab- lished, the Architect shall be permitted to indude con� tingencies for design, bidding and price escalation, to de- termine what materials, equipment, component systems and types of construction are to be induded in the Con- tract Documents, to make reasonable adjustments in the scope of the Project and to indude in the Contract Docu- ments alterna[e bids ro adjust the Construction Cost to the fixed limit. Any such fixed limit shall be increased in the amount of any increase in the Contrad Sum occurring after execution of the Contract for Construction. 3.23 If the Bidding or Negotiation Phase has not com- menced within three months after the Architect submits the Construction Documents to the Owner, any Project budget or fi�ed limit of Construction Coct shail be ad- justed to reilect any thange in the general level of prices in the construction industry- behveen the date of submis- sion of [he Construction Documents to the Oevner and the date on �y�hich proposals are sought. 3.2.4 If a Project budget or fixed limit of Construdion Cost (adjusted as provided in Subparagraph 323) is ex- ceeded by thc lo��est bona fide bid or negotiated pro- posal, the Owner shall (1) give written approval of an increase in such fixed limit, (2) authorize rebidding or re- negotiating of the Project �vithin a reasonable time, (3) if the Project is abandoned, terminate in accordance �vith Paragraph '10.2, or (4) cooperate in reeising the Project scope and quality as required to reduce the Construction Cost In the case of (4), pro��ided a fxed limit of Construo- tion Cost has been established as a condition of this Agree- ment, the Architect, without additional charge, shall mod- ify the Drawing, and Specitications as necessary to mmply AIA DOCUMENT 01i1 • O\\'!�ER-ARCHITCCT AGREEb1F.NT • il-IIftT[E\TH EDITION • JVLI' 19]7 • AIA� • pc '1y77 THE T�t(0.1CAN I�ASTIIVTL O� ABCHITEQS, V35 NEV�' YORA AVE�AUE, N.AV., AA'ASIIINGTON, D.0 20006 FILE N0. 8532 - 23e - with the fixed limit. The providing of such service shall be the limit of the Aichitect's responsibility arising from the establishment of such fixed limit, and having done so, [he Architec[ shall be en[itled to compensation for all services performed, in accordance with this Agreement, whether or not the Conshuction Phase is commenced. ARTICLE 4 DIRECT PERSONNEL EXPENSE 4.1 Direct Personnel Expense is defined as the direct sal- aries of all the ArchitecYs personnel engaged on the Proj- ect, and the portion of the cos[ of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statu[ory employee bene- fits, insuranc�, sick leave, holidays, vacations, pensions and similar contributions and benefits. ARTICLE 5 REIMBURSABLE EXPENSES 5.1 Reimbursable Ezpenses are in addition to the Com- pensation for Basic and Additional Services and indude actual expenditures made by the Architect and the Archi- [ect'S employees and consultants ir, the interes[ of the Project for the expenses listed in the following Sub- paragraphs: 5.1.7 Expense of transportation in connection with the Projed; living expenses in connection with out-of-town travel; long distance communications; and fees paid tor securing approval of authorities having jurisdiction over the Project. 5.�.2 Expense of reproductions, postage and handling of Urawings, Specifications and other documents, exduding reproductions for the office use of Ihe Architec[ and the Architect's consultants. 5.1.3 Expense of data processing and photographic pro- dudion techniques when used in connection Hith Addi- tional Services. 5.1.4 If authorized in advance by the Owner, expense of overtime work requiring higher than regular rates. S.�S Expense of renderings, models and mock-ups re- quested by Ihe O�vner. 5."1.6 Expense oi any additional insurance coverage or limits, induding professional liability insuranw, requested by the Owner in ezcess of that normally carried by [he Architect and the Architect's consultants. /•�[y��'7 PAYMENTS TO TH[ ARCHITECT 6,� PAV'MENTS ON ACCOUNT OF BASIC SERVIC[S 6.1.1 An initial paqmen[ as set forth in Paragraph 14.� is the minimum payment under this Agreement. G.1.2 Subseyuent paqments f�r Basic Services shall be made monthly and shall be in proportion to services per- formed evithin each Phase of services, on the basis set forth in Artide �4. 6J.3 I( and to the esten[ that the Contract T:�.�e initially established in the Contrzct for Construction is exceeded RESOILTPION # 17 or extended through no fault of the Architect, compensa- tion tor any 3asic Services required for such extended period of Administration of the Construction Contract shail be compured as set forth in Paragraph �4.4 for Addi- tional Services. 6.1.4 When compensation is based on a percentage of Construction Cost, and any portions of the Project are deleted or otherwise not constructed, compensation for such portions of the Projeci shall be payable ro the extent services are per(ormed on such portions, in accordance with the schedule set forth in Subparagraph 1412, based on (1) the lowest bona fide bid or negotiated proposal or, (2) if no such bid or proposal is received, the most recent Statement of Probable Construction Cost or Detailed Esti- mate of Construction Cost for such portions of the Project. �,y PAYMENTS ON ACCOUNT OF ADDITIONAL SERVICES 6.2.1 Payments on account of the ArchitecCs Additional Services as defined in Paragraph 'IJ and for Reimbursable Expenses as defined in Artide 5 shall be made monthly upon presentation of the Architect's statement of services rendercd or expenses incurred. 6.3 PAYMENTS WITHHELD 6.3.7 No deductions shall be made from the ArchitecYs compensation on accoun[ of penalty, liquidated damages or other sums withheld from paymen[s to contractors, or on account of the cost of changes in the �h'ork other than those for which,the Architect is held legally liable. b,q PROjECT SUSPENSION OR TERMINAiION 6.4.1 If the Project is suspended or abandoned in whole or in part for more than three mon[hs, the Architect shall be compensated for all services performed prior to receipt of written notice from the Owner of such suspension or abandonment, together with Reimbursable Expenses then due and ali Termination Expenses as defined in Paragraph �0.4, If the Project is resumed after being suspended for more than three months, the Architect's compensation shall be equitably adjusted. ARTICLE 7 ARCHITECT'S ACCOUNTING RECORDS 7J Records of Reimbursable Expenses and expenses per- taining ro Additional Services and services performed on the basis of a Multiple of Direc[ Personnei Expense shall be kept on the buis of generaily accepted accounting principles and shall be available to the Owner or the O�vner's authorized representative at mutually com-enient times. ARTICLE 8 OWNERSHIP AND USE OF DOCUMENTS 8.1 Drawings and Specifications as instniments of serv- ice are and shall remain the property of the Architect whether the Project for which they are made is executed or noL The Owner shall be permitted to retain copies, in- duding reproducible copies, of Drawings and Speci(ica- tions for information and reference in connection with the Owner's use and occupancy of the ProjecL The Drawings and Specifications shall not be used by the Owner on AIA UOCUMENT Ip41 • O\\NCR-ARCHREQ AGREE.Vk VT • 7HIRT[E\TH EDRION • WLY 15,'] • AIR9 • O�Q%7 THE ASIERICAN IkSTITUiG OF ARCHITECTS, 7i3i kE\1' YORK A\'6\UE, k.\V., �1'A51�IINGTON, D.G 1000G FILE NO, 8532 — 23f — 6141•1977 7 other projects, for additions ro this Project, or for comple- [ion of this Project by others provided [he Architec[ is not in default under this Agreement, ezcept by agreement in writing and with appropriate compensation to the Archi- tect. 8.2 Submission or distribution ro meet official regulatory requirements or for other purposes in connection with the Project is not ro be construed as publication i� derogation of the Architect's righ[s. ARTICLE 9 ARBITRATION 9.1 All daims, disputes and other matters in question between Ihe parties to this Agreement, arising cut of or relating to this Agreement or the breach thereot, shall be decided by arbitration in accordance with the Construo- tion Industry Arbi[ration Rules of [he American Arbitra- tion Association then obtaining unless the pariies mutu- ally agree otherwise. No arbitration, arising out of or re- lating to this Agreemept, shall indude, by consolidation, joinder or in any other manner, any additional person not a party to this Agreement except by written consent con- taining a specific reference to this Agreement and signed by thGArchitect, [he Owner, and any other person sought to be joined. Any consent to arbitration involving an ad- ditional person or persons shall not constitute consent to arbitration of any dispute not described therein or with any person not named or described therein. This Agree- ment to arbitrate and any agreement to arbivate with an additional person or persons duly consented to by the parties to this Agreemeni shall be specificaily enforceable under the prevailing arbitration law. 9.2 Notice of the demand for arbitration shall be filed in writing with the other party to this Agreemen[ and with the American Arbitration Association. The demand shall be made within a reasonable time after the daim, dispute or other ma[ter in question has arisen. In no event shall the demand for arbitration be made after the date when insti[ution of legal or equitable proceedings based on such claim, dispute or other matier in question would be barred by the applicable statute of limitations. 9.3 The award rendered by the arbitrarors shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. AR7ICLE 70 TERMINATION Of AGREEMENT 10.1 This Agreement may be terminated by either party upon seven days' written notice should the other party fail subs[antially to perform in accordance with its terms through no fault of the party initiating the termination. 10.2 This Agreement may be termina[ed by the Owner upon at least seven days' written notice to the Ardiitect in the event that the Projed is permanendy abandoned. 10.3 In the event of termination not the fauit of the Ar- chitect, the Architect shail be compensated for all ser��ices performed to termination date, together with Reimburs- zble [xpenses then due and all Termination Expenses as defined in Paragreph 10.4. RESOIxTP20N # 17 10.4 Termination Expenses indude expenses direcdy at- tribu[able ro termination for which the Architect is not otherwise compensated, plus an amount computed as a percentage of the rotal Basic and Additional Compensa- tion earned to the time of termina[ion, as follows: .1 20 percent if termination occurs during the Sche- matic Design Phase; or .2 �0 percent if termination occurs during [he Design Development Phase; or .3 5 percent if termination occurs during any subse- quent phase. ARTICLE 11 MISCELLANEOUS PROVISIONS 11.1 Unless otherwise specified, this Agreement shall be govemed by the law of the principal place of business of the Architect. 11.2 Terms in this Agreement shall have the same mean- ing as those in AIA Document A2C1, General Conditions of the Contrac[ for Construction, current as of the date of this Agreement. 11.3 As between the parties [o this AgreemenL• as to all acts or failures to act by either party to this Agreement, any applicable statute of limitations shall commence to run and any alleged cause of adion shall be deemed to have accrued in any and all events not later fhan the rele- vant Datc of Substantial Completion of the Work, and as to any acts or failures to act occurring after the relevant Date of Substantial Completion, not later than the date of issuance of the final Certificate for Payment. 17.4 The Owner and the Architect waive all rights against each o,her and against the contracrors, tonsult- ants, agents and employees of the other for damages cov- ered by any property insurance during construction as set for[h in the edition of AIA Document A201, Generel Con- ditions, current as of the date of this Agreement. The Owner and the Architect each shall require appropriate similar waivers from their coniractors, consultants and agents. ARTICLE '12 SUCCESSORS AND ASSIGNS 12.1 The Owner and the Archited, respectively, bind themseives, their partners, successors, assigns and legal representatives to the other party ro this Agreement and to Ihe partners, successors, assigns and legal representa- tives of such other party with resped to all covenants of this Agreement Neither the Owner nor ihe Architect shall assign, suble[ or transfer any interes[ in Ihis Agreement without the written consent of the other. ARTICLE 13 EXTENT OF AGREEMENT 13.1 This Agreement represents the entire and integrated agreement beteveen the Owner and the Architect and supersedes all prior negotiations, representations or agree- ments, either written or oral. This Agreement may be amended only by written insVUment signed by both Owner and Archi[ect. AIA DONM[NT 0131 • O\tVER-AHCIII7EQ AGREEMENT • THBTE[NTH CDITION •)C�.11' 19.'7 • i\L\y • � 79i7 8 6141-1477 1HE An1ERIG4N INSTITUTE OF ARCHITEQS, 1735 NE\V YORK AVENUE, NAV., 1\'.dSHINGTON, D.0 2000G FILE NO. f3532 _ z3g _ RESOLUTION # 17 ARTICLE 74 BASIS OF COMPENSATION The Owner shall compensate the Architect for the Swpe of Services provided, in accordance with Artide 6, Payments to the Architect, and the other Terms and Conditions of this Agreement, as follows: 14.1 AN INITIAL PAYMENT of (NONE REQUIRED) dollars ($ shail be made upon execution of this Agreement and credited to the Owner's account as follows: 14.2 BASIC COMPENSATION 14.2.1 FOR BASIC SERVICES, as described in Paragraphs 1.1 [hrough 1.5, and any other services induded in Artide 15 as part of Basic Services, Basic Compensation shall be computed as follows: (Here insert batit o! rompensation, mduding lixed amounts, multiples oi percentages, and idenlity Phates m which particulai methods of mmpensa- [ion apply, if necessary.) SIX POINT EIGHT (6.8%) PERCENT of the cost estimates acceptable to the Owner and based on the accepted design development drawings. The fee at that Phase will be converted to a lump sum amount. 14.2.2 bVhere compensation is based on a Stipulated Sum or Percentage of Construction Cost, payments for Basic Services shall be made as provided in Subparagraph b.t2, so that Basic Compensation for each Phase shall equal the following percentages of the total Basic Compensation payable: pndude any additional Phases as appropriateJ Schematic Design Phase: Fifteen percent (15 �/a) Design Development Phase: Twenty percent (20 %) Construction Documents Phase: Forty percent (4 0%) Bidding or Negotiation Phase: Five percent ( 5%) Construction Phase: Twenty percent ( 2 p%) 14.3 FOR PROJECT RCPRESENL\TION 6EYOND 6ASIC SER\'ICES, as described in Paragreph 1.6, Compensa[ion shall be computed separa[ely in accordance with Subparagraph 1.62. ' nir uocun�enT eui . ocvn��a�,��cHircr ncer.r.��t.n �. n+iei�i.-�ur�+ ruiiio� • i��r i�n . niny . c�i�n 6141-�477 9 THE A�\1[RICAN INSTITUTE OF ARCHRCCTS, "I:15 NF\V 1'ORK AVENUE, N.l\'., \\'ASHWGION, D.0 2000G PIL� N0. 8532 — 23h — � RESOLUTION # 17 14.4 COMPENSATION FOR ADDITIONAL SERVICES dnd Stdt2d Tlme drid Material Charges. 14.4.1 fOR ADDITIONAL SERVICES OF THE ARCHITECT, as described in Paragraph 1J, and any other services in- duded in Artide 15 as part of Additional Services, but excluding Additional Services of consultants, Compen- sation shall be computed as follows: (Here inser[ basis ol compensation, induding rates and/o� multiples e� Dirett Personnel 6pense lor Principals and employees, and iden[ily Principala and classiiy employees, it required. Identily speci/ic services m which panicW�r methods ot mmpensation apply, if necessary.) 1. Principals' time at the fixed rate DOLLARS ($55.00) per hour. For the Agreement, Principals are: Robert L. Yarbro Richard J, Kempinger of FIFTY FIVE purpose of this 2. Employees' time (other than Principals) at a multiple of TWO POINT FIVE (2.5) times ti.e employees' Direct Personnel Expense as defined in Article 4. 14.4.2 FOR ADDITIONAL SERVICES OF CONSULTANTS, induding additional structural, mechanical and electrical engineering services and those provided under Subpara�raph 1J.21 or iden[ified in Artide 15 as par[ of Addi- tional Services, a multiple of one point on2 f1Ve r 1. 15 ) time, the amounts billed to the Architect for such services. (Iden(ily tpecilic p�Aes ol consultants in Artide L'. il required! 14.5 FOR REIh16URSABLE EXP[NSES, as described.in Artide 5,�n d any o[her i tem$y� duded in Artide 15 as Reim- bursable Expenses, a multiple of one polnt one ilVe ( 1.1�7 J times the amounts er- pended by the Architect, the Architect's employees and consultants in the interest of the Project. 14.6 Payments due the Architect and unpaid under this Agreement shall bear interest from the date payment is due at the rate entered below, or in the absence thereoi, at the legal rate prevailing at the principal place of business of the Architect. (Here intert any iale ol interest agreed upon.) Nsury la�vs and requirements under the Federal Tm�h !n Lendins AcL vmilar state anJ local mnsumer oed�t laws anJ oihe. regulations ut Ihe Owner's and Archile<Cs prinGpal places o! buslness, [he location of the P�ojea and elsewhe.e mny aFect the valid�ty of Ihis p�ovision. Specilic legal adcice should be obtained wi(h respect to delelion, modiGcation, or other reGUirements mch as wrilten disdomiet or waiversJ 14J The Owner and the Architect agree in accordance �+ith the Terms and Conditions of this Agreement that: 14J.1 IF TH[ SCOPE of the Projec[ or of the Architect's Ser��ices is changed materially, the amounts of compensation shall be equitably adjusted. 14J.2 IF THE SERVICES mvered by ihis A�reement have not been completed within O months of the date hereof, through no fault of the Architect, the amounts of compensation, rates and multiples set forth herein shali be cquitably adjusted. 10 61A1•1977 A�� uocun�en;r uiar • o��Nea�nea�ulea �caeenie.ur . riiieree�urH �oirio�u • �u�v �en . ni,�� . o ivn THC As1EFICAM IiuSiITl1TE OF ARCHITECTS, "V35 NCAY 1DRA �VENUE, N.AV'., 1A'ASHINGTO.V, D.G 4000G FILE NO. 8532 - 23i - J 15.1.1 RRSOLUTION # 17 ARTICLE �5 OTHER CONDITIONS OR SERVICES Change 5.1.2 to read as follows: "5.1.2 Expense of reproduction of Drawings, Specifications and other pocuments, excluding reproduction for the Office use of.the Architect and the Architect's Consultants. At OHmer's option, Owner may reproduce Drawings and Speci£ications with Owner's facilities." _ _ . 0 AIA DOCUMENT 61J1 • OAVNER�ARCHITCCT AGRCEI.tERT • THIRICCA�TH EDIIION • �ULY 1977 • NhN • OO �977 7HE A.uERICAN INSIITUT[ OF AHQIIIECIS, 1?35 NfN' 1'OA� AYENUE, N.\V., W'ASHI�\'GTON, D.0 ]OWG 6141-1977 �� FILE N0. 8532 - 23j - RESOLUTION # 17 IN WITNESS Wf:EREOF, the City of Oshkosh, Wisconsin has caused this Contract to be sealed with it's corporate seal and to be subscribed to by it's City Manager and City Clerk and countersigned by the Comptroller of said City, and the party of the second part hereunto sets it's, his or their hand and seal the day and year first above written. In the presence of: ; �� ; �(5 al of Architect - �� if a Corporation) ARCHITECT YARBRO-KEMPINGER ARCHITECTS, INC. :..�i / � / �d � i �� - � "�,� OWNER CITY OF OSHKOSH, WISCONSIN By Wi iam D. Frue , City Manager By Donna C. Serwas, City C er i hereby certify that provisions have been made to pay the , liability that will accrue to the City of Oshkosh under this Contract City Comptro er Approved as to form and execution i y t orney FILE NO. 8532 - 23k - (5ea1 of City) 12 � yarbro - kempinger ��=-� architects, � �� 1018 W. SOUTH PARK AVENUE 24 July 1985 Mr. William Frueh City Manager City of Oshkosh 215 Church Avenue Oshkosh, Wisconsin RESOLUTION # 17 inc. • POST OFFICE BOX 2098 • OSHKOSH, WISCONSIN 54903 • 41M235-3370 RE: The 400 Block Downtown Streetscape Project Oshkosh, Wisconsin Mr, Frueh: We propose to provide architectural services to the City of Oshkosh for the subject project generally based on Option 1 design prepared by the Sanborn Group, Inc. It is our understanding that Option 1 is composed of four (4) Levels of work proqram. Though not shown on Sanborn's design concept, we have been advised by Jackson Kinnay that the pzoject scope is increased to include walk work on Algoma/Washington and C:�urch/Merritt cross streets. The work will extend to the alley at all four (4) locations. Those Levels have been somewhat modified and we have been advised of the following: Level One; Basic Cleanup consisting of - Remove outdated street fixtures - Paint lighting; signal and sign standards - Consolidate signage and banner hardware Estimated Cost Level Two: Replace Street trees - Mobilization - Demolition - Excavation - Soil preparations - Aerification and watering tubes - Trees - Tree grates - Tree guards - Cl��.an up/guarantee/maintenance Estimated Cost - 23L - $ 10,000 $ 39,900 RESOI�iTPION # 17 Page 2 � Mr. William Frueh RE: The 400 Block Downtown Streetscape Project Oshkosh, Wisconsin Level Three: Sidewalk replacement - Mobilization - 1�Saterial security, traffic control - Demolition - 5pecial excavation - Granular Fill - Standard City concrete walks - Extra heavy concrete walks - Power subbase - Concrete pavers Estimated Cost Level Four: Amenities � - Telephones - Pedestrian level lighting poles and fixtures � - Electrical conduit and trenching Estimated Cost Total of Construction Estimates Levels One, Two, Three and Four Contingency Fund Total Our services would include the following: $ 50,567 $ 35,200 $135,667 $ 13,567 $149,234 1. Design development based on the concept design and the above modifications. 2. Meeting with those City and Citizen Committees related to the project for the purpose of gaining input, review of design development and assistance in selection of amenities, materials and colors. 3. 4 E Preparation of Bidding and Construction Documents based on the approved design development. Assist the City in obtaininq proposals. Assist the City in Contract award(s). 6. Administrate the Contract(s), observe the construction for contract compliance, process shop drawings and payment requests. - 23m - RE50LATION # 17 Page 3 Mr. William Fr�eh RE: The 400 Block Downtown Streetscape Project Oshkosh, Wisconsin An Architect should be commissioned on the basis of: 1. De>.�onstrated experience 2. Iniegrity 3. Completeness of documents 4. Fee and in that order. Yarbro-Kempinger has been the Architect for the following successful, similar projects. 1. Walkway West, Phases I& II, Oshkosh 2, Waters Plaza, Oshkosh 3. Various streetscaped parking lots for Oshkosh 4. Soldiers Square, Downtown Appleton 5. Houdini Plaza, Phases I& II, Downtown Appleton Houdini Plaza, which was dedicated in Spring of 1985 has enthusiastically been accepted as one of the most pleasant and rewarding additions to downtown Appleton. Yarbro-Kempinger has continued to maintain their quality of work. This quality is reflected in our fee proposal. We will continue to provide quality professional service at commensurate compensation. We have not included electrical engineering design services for lighting and traffic control electrical work. Tt is assumed that the City Electrical Section would design and install the wiring and that Wisconsin Public Service Corporation will provide electrical energy on a flat rate basis. Yarbro-Kempinqer will review the cost estimates for the project after design development drawings are completed. Our estimates will be based on our past and recent experiences in work of this nature. They may or may not agree with those stated above as developed by Sanborn and the City. We propose to provide our services for a fee of 6.808 of the value of work constructed. - 23n - RESOLUTION # 17 P"age 4 � Mr. William Frueh RE: The 400 Block Downtown Streetscape Project Oshkosh, Wisconsin We further propose that our fee be converted to a lump sum amount at the time the design development drawings and cost estimates are accepted by the Owner. The 6.80� of the accepted cost estimates would establish the lump sum amount. Sincerely, YARBRO-KEMPINGER ARCHITECTS, INC. by `,�� La.-�.,�/'-r-J Robert L. Yarbro � RLY/mh - 230 - ,, -. ,.: _ . ,, , _ ., _ - �: - • � c-� � a C h � �G C N c"') � c F •� � N � � � \ v W . Ul �r� (` � , c-> 3 0-n a A .TJ —I � O c'F N �O O o70 mz zroY � o•• rra •• �C N V �F N � 3 �• �GO � �fD N � � (� (n N —� d �• VICF(p t-t .�• 7 Ol 'S O N � ("') (D O �+E � • O in li4Y r � � i� � fi ��j A a , O � 1=--: o �+ �,� m 0 n �