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HomeMy WebLinkAbout4356 +--~--------------------~--------------------------------------------------+ +Enter Search Criteria, Press Esc Key to Transmit + +press Del Key to Terminate Delete Mode + + CHANGE Contract Transactions + + Contract Number 4356 + + + +vendor Name RICE FERGUS MILLER ARCHITECTURE & PLANNING LLP + +Subject ARCHITECT - FIRE STATION+ +Department ECON DEVEL + +Status Code PRO + + Amount $217156.00 + + Begin Date 04/30/2003 + + Insurance End Date 12/31/2004 + + Type Amount Review Date 02/15/2007 + + E&O $2000000.00 + + + + + + Insurance Total $2000000.00 + + Insurance Review Date 02/01/2007 + + + + Comments SUPPLEMENTAL AGREEMENT 2/05 + + VAULT 01/01/2007 + + + +--------------------------------------------------------------------------+ ~!~Yrgus i\~ ER supplemental sef'/\ces ~9{eement fife Station #' ownef: CitY of Bfe{l\erton PfO}ect: SSp.. No.: 2002' 62.00 oate of p..gfee{l\ent: febfuafY 4, 2005 PfO}ect NO.: . 10 accordaoce wito toe j\.greemeot relereoced abOve, autMrizatiOO is oerelYi gIVeO to: S . o proceed witO P.dditiOoal ervlces . . o proceed witnrevised scope 01 BasIC servIces \! ioCur Reimbursable l'>< eoses. PlaooiO LLP. will assist witO t;S fOLLOWS: RIC~ ferguS 1I\IIIer :,colt~'~~~I~~ witO toegcxr{s cooseo lurnitUre lurnitUre aod labllc selectlOo aO coor I vend Of fOf uP to 20 hoUfS. . I II WS' fee will be billed at 5110.00 per oour compensation soall be adlu~ted as 0 ~ t' . 0 time re<\uested bY toe City will be up to 51,600. P.dditiOoal MOlture consu a 10 billed on an oourlY basis 01 5BO.00/oour. 1\me lor pe!formance soall be adjusted as {olio"": nla . I S iCes j\.greemeot soall become a part 011\le Upon e~ecutiOO, tOIS Supplemeot> erv d upplemental serviCes described abOve original j\.greement relerenced above, aO s ; com ence. p..uthOf\Zed bY Ownef: SU ",\tte ..-.,~..';. ::: . 62 00 .t'J of bfetnerton fife . ,.\2002162 c\I'i 01 b<<",arton .<< .,""on .r \2002\ . ~ \\SbseNef\CotnpanY\Pfolec station #"\\contfacts\SSa#O"\ .dOC + iEnter Search Criteria, Press Eec Key to Transmit Press Del Key to Terminate Delete Mode CHANGE Contract Transactions Contract Number 4356 Vendor Name RICE FERGUS MILLER ARCHITECTURE & PLANNING LLP Subject ARCHITECT - FIRE STATION IDepartment ECON DEVEL Status Code PRO Amount $215556.00 Begin Date 04/30/2003 Insurance End Date 12/31/2004 Type Amount Review Date 11/01/2004 + $2oooooo.oo Insurance Total $2000000.00 Insurance Review Date 02/01/2005 Comments + + Professional Services Agreement A. Project Owner: City of Bremerton, 239 Fourth Street, Bremerton, WA 98337, phone - (360) 473-5234, fax - (360) 473-5850. B. Architect: Rice Fergus Miller Architecture & Planning, LLP 262 4th Street, Bremerton, WA 98337 (360) 377-8773; FAX: (360) 792-1385 C. Time for Performance: Per Article II - Schedule of Performance D. Compensation for Services: $215,556 E. Architects Authorized Basic Representative: David A. Fergus, Partner F. City's Representatives: Kathleen McCluskey, Project Administrator Gary Sexton, Director of Economic Development The parties listed as authorized representatives have authority, make decisions and on behalf of the respective party. THIS AGREEMENT IS MADE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH ON THE FOLLOWING PAGES HEREOF. THE ARCHITECT SPCIFICALLY AGREES THAT THE INDEMNIFICATION AND SAVE HARMLESS PROVISIONS OF SUCH AGREEMENT, TOGETHER WITH THE ARCHITECT'S WAIVER OR IMMUNITY UNDER WASHINGTON RCW TITLE 51, WERE SPECIFICALLY REVIEWED AND MUTUALLY NEGOTIATED, INCLUDING BUT NOT LIMITED TO PARAGRAPH 9. Rice Fergus Miller nrch~tur~ ~n~ ning, LLP City of Bremerton Title: Partner Title: Mayor Professional Services Agreement Page 1 of 15 4/21/2003 I. Consultants: The Architect shall, in a timely manner, designate and appoint sub-consultants after conferring with the City's Project Administrator. The Architect shall not appoint any sub-consultants to which the City has a reasonable objection. The Architect shall incorporate the provisions of this agreement, the scope of work, and the requirements of the project into the contracts with sub-consultants. The Architect shall not change consultants on this project without the express written approval of the owner project representative, which approval shall not unreasonably be withheld. II. Schedule of Performance Schedule of performance, Basic Services, Bremerton Headquarters Fire Station Complete by Schematic Design Phase 07/15/2003 Design Development Phase 08/30/2003 Construction Documents Phase 10/30/2003 Bidding Phase 11/31/2003 Construction Phase 11/31/2004 Construction Completion Phase 12/31/2004 III. Scope The Architect will perform architectural and engineering base services for Schematic Design, Design Development, Construction Documents, Bidding and site visits for the construction phase. These services include structural, mechanical, and electrical engineering services. The fire station is to be constructed on a 1.1 acre parcel being purchased by the City adjacent and west of Park Avenue and between Ninth and Tenth Streets, plus possible property for parking north, south or west of the primary properties. The anticipated building size is approximately 15,300 sq. ft. The Architect shall review information provided by consultants directly retained by the City and shall coordinate the work and work product of such consultants with the Architect's work into an overall set of consistent drawings, specifications and other contract documents. The Architect may reasonably rely upon the accuracy and completeness of City furnished services, information, surveys and reports. In such cases, authorship of such documents will be clearly identified. Professional Services Agreement Page 2 of 15 4/21/2003 The Architect shall provide to the Project Administrator four (4) copies of project documents upon completion of each of the Schematic Design, Design Development and Construction Document phases. Project documents shall be in a form and style suitable for presentation, review and reproduction. The Project Administrator shall submit the Architect's documents for obtaining a building permit and other permits or approvals required for the project. Upon application for such permits, the Architect shall reply to all inquiries from governing agencies forwarded by the Project Administrator, shall make any necessary or appropriate changes to the Contract Documents approved by the City and assist the City in expediting the issuance of all such permits or approvals. The Architect shall meet solely with Kathleen McCluskey, Project Administrator or in her absence, Gary Sexton and A1 Duke, Fire Chief as reasonably requested to ensure that the developing design is meeting the City's requirements and shall conduct presentations of the Project to the City Council or other groups as requested by the Project Administrator, limited to one such presentation at the completion of each phase of service. A detailed list of the documents to be prepared for each scope of work is attached hereto as Attachment A. Through the design process, the Architect shall assist Project Administrator with analyzing the project scope, design alternatives, schedule and budget options to keep the project within the Maximum Allowable Construction Cost (MACC). If the construction cost estimate exceeds the MACC, the Architect shall analyze design alternatives and submit cost saving options for the City's consideration. City shall furnish required information, approvals and services as expeditiously as necessary for the orderly progress of the work. Architect shall promptly notify the Project Administrator in writing in the event orderly progress of the work is disro, pted by failure of the City to provide such information, approvals or servmes, and the project schedule shall be adjusted as mutually agreed. The City shall separately furnish the following services: · Land survey of the site, prepared by a registered land surveyor. · Legal, accounting, and insurance counseling services reasonably required. · Geotechnical engineering, which may include test borings, test pits, soil bearing values, and air and water pollution tests. · Civil engineering. · Landscape and irrigation design services. · Specialty consultant services, such as communications, acoustic, indoor air quality, security, audio visual, or similar. · Testing services during construction that are reasonably required. Professional Services Agreement Page 3 of 15 4/21/2003 The City shall arrange and pay for the required advertisements for bid and other legal notices. A. Schematic Design Phase 1. Based upon the City's approved program created in consultation with the Architect, the Architect shall prepare the general and detailed requirements for the Project, for the Project Administrator's approval. The Schematic Design Phase shall consist of two parts: a) Conceptual Design Alternatives and b) Schematic Design Documents. Upon approval of the Conceptual Design by the Project Administrator, the Architect shall prepare the Schematic Design Documents. 2. The Architect shall submit to Project Administrator a Construction Cost Estimate projected to the expected time of bid, itemized by major categories, to give reasonable assurance that construction costs will not exceed the MACC. The format of the estimate shall be based on format approved by the Project Administrator. The Construction Cost estimate shall establish a preliminary schedule setting forth the expected period of time required for completion of construction. 3. The Architect shall provide a timely written response, in accordance with the schedule, to Project Administrator review comments, and shall secure the City's written approval of the Schematic Documents. B. Design Development Phase 1. Upon written authorization to proceed fi-om City, the Architect shall prepare, based upon the approved Schematic Design documents, Design Development documents required to fix, describe and illustrate the full size, character and scope of the Project. 2. The Architect shall submit to Project Administrator an updated and itemized Construction Cost Estimate including an updated Project schedule, based on the completed Design Development documents, in the same format as the Estimate prepared for the Schematic Design Phase. The updated Construction Cost Estimate shall be in sufficient detail to give reasonable assurance that construction costs will not exceed the MACC. 3. The Architect shall review and respond to the Project Administrator's review comments and shall secure Project Administrator's written approval of the Design Development documents. C. Construction Documents Phase Professional Services Agreement Page 4 of 15 4/21/2003 1. Upon written authorization to proceed from Project Administrator, the Architect shall prepare, based upon the approved Design Development documents, Construction Documents consisting of Drawings, Specifications and other documents setting forth in detail the scope of the Project, Such documents shall describe materials, standards of workmanship, finishes, equipment and the conditions affecting the work required to be performed in all divisions of the construction work. 2. In preparing the Construction Documents, the Architect shall, in consultation with the Project Administrator, prepare the necessary bidding information, bidding forms, which shall include the City's General Conditions of the Contract, Supplemental Conditions, instructions to bidders and prevailing wage rates and ensure that the subsequent divisions of the Construction Documents are consistent therewith. 3. The Architect shall prepare a detailed Construction Cost Estimate, including an updated Project schedule, based on the completed Construction Documents. The final detailed Construction Cost Estimate shall include an itemization of alternates proposed and the estimated construction cost to be added or deducted from each alternate selected. a. The Architect shall propose and prepare bid alternates to provide reasonable assurance that the City will be able to award a construction contract that does not exceed the MACC. 4. The Architect shall submit to Project Administrator four (4) sets of the completed construction drawings and specifications. 5. The Architect shall secure the City's written approval of the drawings and specifications, the final cost estimate, and the alternates. D. Bidding Phase 1. The Architect shall assist the Project Administrator in issuing the Bid Documents to bidders and plan centers. The Architect shall attend and participate in the prebid conference and generally assist Project Administrator in managing the bid process. 2. In the event the lowest responsive bid submitted by a responsible bidder satisfactory to the Project Administrator exceeds the MACC, then the Architect will, at it's sole cost and expense, revise the drawings and specifications as may be required by Project Administrator to reduce or modify the quality or quantity, or both, of the work so that the total construction cost of the Project will not exceed the MACC. Professional Services Agreement Page 5 of 15 4/21/2003 E. Construction Phase 1. The Architect shall participate with Project Administrator in the preconstruction conference with contractor. 2. During the progress of construction, the Architect shall perform services including: · Visit the site a minimum of twice weekly during construction. Architect shall be familiar with the progress and quality of the work completed and able to determine if the work is being performed in a manner that will be in general conformance with the contract documents when completed. · Consult with the Project Administrator during the Construction Phase. Instructions to the contractor shall be communicated by the Architect. The Architect shall have authority to act on behalf of the Project Administrator only to the extent provided in the Contract Documents unless otherwise modified in writing by the Project Administrator. · Interpretations of the requirements of the Contract Documents shall be made by the Project Administrator with consultation and written recommendation from the Architect. · Provide to Project Administrator copies of all written communications that the Architect provides to Contractor, at the same time such communication is provided to Contractor. · Verify general conformance with the contract documents, review, approve or otherwise take appropriate action upon Contractor's submittals, including field questions, shop drawings and submittals of materials, equipment, tests and inspections. The Architect shall take prompt action so as to cause no delay in the work. · Prepare necessary documents for changes in the work including revision drawings, cost estimates and reasons for change, and secure, analyze in detail and recommend disposition of proposals from Contractor. If requested, the Architect shall attend Project Administrator meetings convened for purpose of reviewing proposed changes in the work. · Determine and certify the amount owing to Contractor, based on the Architect's observations and evaluation of Contractor's Application for Payment. The Architect's certification for payment shall constitute a representation that the work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quantity and quality of the work is in general conformance with the Contract Documents and that the Contractor is entitled to payment in the amount requested. · Review Contractor's progress schedules at least once per month for conformance with the Construction Documents, and promptly notify the Project Administrator and Contractor of deviations and noncompliance. · Attend on-site Project progress meetings once per week. The Architect shall require its sub consultants attend progress meetings as needed Professional Services Agreement Page 6 of 15 4/21/2003 and/or requested by the Project Administrator. The Architect shall keep project meeting minutes, and transmit copies to the Project Administrator and Contractor as soon as possible but in no event later than one day prior to the next weekly meeting. · The Architect shall select finish materials and colors and prepare color schedules for items included in the construction contract for the Project Administrator's approval. 3. The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions, and programs in connection with the work, and shall not be responsible for Contractor's failure to carry out the work in accordance with the Contract Documents. 4. The Architect shall at all times endeavor to discover and guard owner against defects and deficiencies in the work of Contractor, but it is understood that the Architect does not guarantee the performance of the Contractor. The Architect shall promptly advise the Project Administrator of work which does not conform to the Contract Documents. 5. The Architect shall have authority to reject work which does not conform to the Contract Documents. The Architect shall recommend to the Project Administrator that the Contractor be directed to stop work when such stoppage may, in the Architect's reasonable opinion, be necessary to ensure the proper execution of the work. F. Construction Completion Phase 1. The Architect shall conduct pre-final inspection and prepare check lists of corrective items, make final inspections by all disciplines, including at least one re-inspection, recommend the date or dates of final completion and recommend acceptance of the Project to Project Administrator. 2. The Architect shall obtain, review, approve and deliver to the Project Administrator, written guarantees, manuals and instructions from Contractor as required by the Construction Documents upon completion of construction and prior to recommending acceptance of the Project to the Project Administrator. 3. The Architect shall modify the original Construction Drawings to conform to the project record drawings provided by Contractor which incorporates all changes in the work, including utilities, made during construction and addenda during bidding. The modified original Construction Drawings and related electronic media shall be completed and submitted to the Professional Services Agreement Page 7 of 15 4/21/2003 Project Administrator within two months of owner's acceptance of the Project or as otherwise mutually agreed. 4. Upon the Project Administrator's request during the warranty period set forth in the Construction Contract, the Architect shall assist Project Administrator in identifying defects in the Project, determine corrective measures, provide inspection of the Project and assist the Project Administrator in implementing corrective measures. G. Additional Services and Reimbursable Expenses 1. The City shall pay for the following Additional Services performed, furnished, or incurred by the Architect. However, the City has no obligation to pay Architect for Additional Services performed by Architect prior to receipt of the Project Administrator's authorization for such service. The City reserves the right to employ other means to accomplish said services. a. Revising drawings or specifications previously approved by the City when such revisions are due to changes in project scope, program changes, changes required by the enactment or revisions to codes, laws, or regulations subsequent to the preparation of such documents, or changes directed by the City that are not normally made as a part of the Schematic or Design Development phases b. Providing consulting services for City-supplied equipment, new or used, to be incorporated into the Construction Contract, such as bunker gear extractors and dryers, diesel exhaust collection equipment, compressors, breathing air fill equipment, or the like. c. Providing consulting services in connection with selecting and/or procuring furniture, fixtures, and equipment (FF&E) outside of the Construction Contract. d. Providing consultation or contract administration for the replacement of any work damaged by fire, accidental or natural causes during construction, provided that such damage was not caused by the fault or negligence of the Architect; providing professional services or arranging for the work to proceed should the contractor default in the performance of the construction contract or become delinquent or insolvent. e. Providing services in connection with improvements and/or equipment installation at either of Bremerton's other two fire stations. Professional Services Agreement Page 8 of 15 4/21/2003 f. Providing brochures, detailed architectural models, or additional graphic presentations beyond the TWO graphic presentations agreed to. g. Providing services during the construction phase in connection with unforeseen conditions or changes requested by the Project Administrator. h. Providing services during construction in connection with processing more than 75 contractor-generated Requests for Information (RFI's), excluding any RFI's reasonably contributed to an error or omission of the Architect. i. In the event the construction period up to substantial completion exceeds the time stipulated in the construction contract including change order extensions by more than 10%, the Architect shall continue administration of the construction contract and be entitled to Additional Services compensation for the construction time extension occurring through no fault or neglect of the Architect. j. Providing services a~er issuance to the City of the Contractor's final Certificate for Payment. 2. The City shall pay for the following reimbursable expenses incurred by the Architect and/or their sub-consultants. The City will pay the Architect an additional 7.5% of authorized reimbursable expenses as a handling fee. a. Providing additional copies of drawings, specifications, studies, reports, Contract Documents, correspondence, and/or papers received or issued by the Architect as requested by the Project Administrator. b. Providing printing and distribution of documents to the City at the completion of each phase of service, including the construction documents for bidding. c. Out-of-pocket reprographic expenses when substantiated by third- party invoices. No reimbursement shall be made for postage, handling, telephone expenses, faxes, or copies of documents used by the Architect to perform normal services and not provided to the City. 3. Fees for authorized Additional Services shall be mutually agreed to by the City and the Architect prior to performing such services. H Basis of Compensation Professional Services Agreement Page 9 of 15 4/21/2003 1. Maximum Allowable Construction Cost (MACC) Defined: The MACC for this project is $2,760,000, and is the total sum allocated by the City for construction of the project, not including Washington State Sales Tax, Architect compensation, or other items in the City's project budget such as contingencies, administrative costs, furniture or equipment purchased outside the construction contract. 2. It is understood that the Architect's fixed fee has been established, in part, by a percentage of the City's MACC ($2,760,000 x 7.81% = $215,556). If at any time the City elects to increase the MACC by more than 10%, the Architects fee shall be adjusted proportionately to the adjustment in the MACC. IV. Standard Terms and Conditions 1. Time and Delay. Time is of the essence in this Agreement. The Architect agrees to punctually and diligently perform all parts of it's Services as scheduled in Attachment A, which shall be subject to change by the City as may be deemed necessat~ to the overall progress of the Project. 2. Monthly Invoices: Final Payment. a. Payments shall be made no more often than once each calendar month within thirty (30) days after the City's receipt of a monthly invoice for fees and costs incurred during the preceding month; provided that: (i) all services covered by the invoice have been fully and timely performed; (ii) the Architect has furnished the City with copies of supporting documentation for all costs covered by the invoice; and (iii) the Architect is not in default under this Agreement. b. Each payment made by the City to the Architect shall be deemed made to the Architect in trust for the Architect's sub-contractom and consultants to the extent such parties have not been paid for the services, supplies, equipment or materials provided by such parties. c. Should there be any claim, obligation or lien asserted before or after final payment is made that arises from the negligent performance of the Architect's work, the Architect shall reimburse the City for any costs and expenses, including attorney fees, costs and expenses, incurred by the City in satisfying, discharging or defending against any such claim, obligation or lien, including any action brought or judgrnent recovered. City shall have the right to withhold from any payment, or othenvise be reimbursed for, an amount sufficient to protect the City from any such claims. 3. Compliance with Laws; Governmental Agency Communications. The Architect shall comply with all Federal, State and Local laws, rules, Professional Services Agreement Page 10of15 4/21/2003 regulations and ordinances applicable to the services and the Architect's performance thereof, which are in effect at the time the services are provided and the requirements for environmental documents prepared under the State Environmental Policy Act (SEPA). 4. Performance Standard. The Architect shall perform the services in a professional, efficient and economical manner consistent with the City's needs as set forth in the scope of work attached hereto, and consistent with the level of care, skill, practice and judgment exercised by other professionals performing services of a similar nature under similar cirenmstances. The Architect represents and warrants to the City that all persons who will be performing the services possess the requisite skill, training and experience and hold all required licenses and permits to render the services contemplated by this Agreement. 5. Safety. a. The Architect shall comply with all applicable Federal, State and/or Local safety related laws and regulations, and shall comply with any such laws and regulations, including but not limited to any OSHA, WlSHAJOregon Department of Labor Health and Safety Rules/Regulations. The Architect shall fully comply with the Hazard Communication Standard for the Construction Industry, and any Federal, State or Local Right to Know Legislation and shall transmit information to all parties concerning chemical hazards requirements. 6. Amendments/Changes. The City may, without invalidating this Agreement, fi.om time to time request changes in the scope of the services. If such changes involve additional time and expense by the Architect, the Architect shall, within five (5) days of receiving notice of the requested change, submit its estimate to the City of the costs and additional time, if any, necessary to perform such changes. The Architect shall commence any such change order work only upon the written receipt by the Architect of the approval by the City to do so. 7. No Assignments or Delegation of Services. a) This Agreement may not be assigned by operation of law or otherwise, without the prior written consent of the City, which may be withheld at its sole discretion. b) The Architect shall assign the persons designated in Section E on the first page of this Agreement as its key personnel to perform the services on behalf of the Architect. Such key personnel shall be replaced only with the prior consent of the Project Administrator, which may be withheld in its sole discretion. None of the services may be delegated or sub- Professional Services Agreement Page 11 of 15 4/21/2003 contracted to an independent contractor without the prior written consent of the City, which may be withheld at its sole discretion. The Architect shall remain fully responsible for the manner and quality of all services performed, including the performance of all consultants and sub- consultants retained by the Architect. 8. Indemnity. To the fullest extent permitted by law, and to the extent the Architect is negligent, the Architect shall indermdfy, defend and hold harmless, the City, its officers, agents, employees and representatives from and against any and all claims, damages, losses and expenses, including, but not limited to, reasonable attorney fees, which arise out of or result from any negligent act or omission of the Architect, any consultants engaged by the Architect and for anyone directly or indirectly employed by them. If the claim results from the concurrent negligence of the City and the Architect, the Architect's indemnification obligation shall be limited to the extent of it's negligence; and (b) the Architect expressly waives any immunity that may be granted it under the Washington State Industrial Insurance Act, RCW Title 51, to the extent necessary to provide the City with such full indemnity. The provisions of this Section shall survive termination of this Agreement for any reason. 9. Insurance. Prior to the commencement of the Services, the Architect shall, at its own expense, obtain the following insurance coverage, which coverage shall remain in force during the term of this Agreement: a) Commercial General Liability insurance, including blanket contractual liability coverage, with limits of at least: $2,000,000 General Aggregate (Other Than Products-Completed Operations) $2,000,000 Products- Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Per Occurrence Limit $ 100,000 Fire Damage Limit (Any One Fire) b) Professional Liability insurance, including errors and omissions, with limits of liability equal to at least $1,000,000 each occurrence; c) Automobile Liability insurance with limits of liability of not less that $1,000,000 per occurrence combined single limit for bodily injury property damage; d) Employer's Liability or Stop Gap Liability insurance with limits of not less than $1,000,000 each accident, $1,000,000 each employee-disease and $1,000,000 policy limit-disease; and Professional Services Agreement Page 12 of 15 4/21/2003 e) Insurance in accordance with all applicable laws relating to workers' compensation with respect to all of the Architect's employees, owners and officers, regardless of whether such coverage or insurance is mandatory or merely elective under the law. f) .Each policy of insurance shall be in a form satisfactory to the City with an insurer having an A.M Best rating of B+ VI or better, and provide thirty (30) days' advance notice to the City of non-renewal or material change. Such policies shall not have deductibles that exceed $25,000 per occurrence. Prior to the commencement of the services, the Architect shall provide the City with written evidence of the required coverage in the form of a certificate of insurance with additional insured endorsements naming the City of Bremerton as additional insured attached or, upon the City's request, a copy of the policy. The insurance certificate requirements for the coverage required for workers' compensation will be satisfied by a letter from the appropriate state agency confirming participation in accordance with statutory requirements. 10. Architect's Default. If the Architect fails to prosecute the services promptly or properly or breaches or fails to perform any obligation under this Agreement, the City may give the Architect seven (7) days' written notice of such matter. If such matter has not been corrected within such seven-day period, the City may, without prejudice to any other right or remedy it may have, terminate this Agreement and correct any defective services and charge the Architect for all costs, expenses, and impacts to the Project arising from such defects, and deduct the same from sums otherwise due the Architect. 11. Documents and Data. a) The Architect agrees that all documents, drawings, reports, electronic files, auto CADD version 12-14 or compatible or similar electronic information, together with other information prepared or obtained by the Architect in connection with the services including work in progress (cumulatively "materials"), are the sole property of the City for use exclusively by the City or its designated agents and employees and shall be submitted to the City within three (3) working days at~er a written request from the City and, in any event, upon completion of the services under this Agreement, prior to and as a condition of the final payment to the Architect. City shall indemnify Architect from any claims or damages arising from the City's subsequent use of the electronic version of said materials. 12. Confidentiality. The Architect agrees that all documents, drawings, reports and other data and information prepared or obtained by the Architect in connection with the services are confidential and shall not be disclosed or Professional Services Agreement Page 13 of 15 4/21/2003 made available to any individual or entity other than the City, its designated agents or employees and any person who must know the information in order for the Architect to complete the services except to the extent required to be disclosed pursuant to the Public Records Act, chapter 42.17 RCW. 13. Royalties, Patents, Copyrights and Trade Secrets. a) The Architect shall not infringe on United States patent, copyright, trade secret or other proprietary right for any material, product, or part of any material or product (including, for example, software, hardware, service, design or equipment0 used or ftmfished in connection with this Agreement, and shall defend and indemnify the City from any suits or claims for infringement of any such rights and shall hold the City harmless from any loss on account thereof. 14. Notices. All notices provided for herein may be transmitted by facsimile, delivered or mailed. If mailed, such notice shall be considered delivered three (3) days after being deposited in such mail. The addresses to be used in connection with such correspondence and notices are as set forth on the first page of this Agreement, or such other address as a party shall from time to time direct. Notices or correspondence to the City shall be sent to such address marked for the attention of the City's Representative designated in Section F on the first page of this Agreement, or such other representative as the City may hereafter designate from time to time. 15. Suspension of Services; Termination. The City may, upon written notice, direct the Architect to suspend all or a portion of the Services. In the event of such suspension, the Architect shall be entitled to payment off (a) all fees properly earned up to the effective date of suspension; and (b) all reimbursable expenses actually and properly incurred up to such date, but excluding any and all unearned overhead and profit. If the services are suspended for a continuous period of more than sixty (60) days, and such suspension is not due to the fault of the Architect, then the Architect shall also be entitled to payment of unavoidable out-of-pocket expenses, excluding any and all nneamed overhead and profit, actually suffered as a result of such suspension. The City also reserves the right to terminate this Agreement for the convenience of the City at any time upon three (3) days written notice to the Architect. If the City so terminates this Agreement, the Architect shall be entitled to payment off (a) all fees properly earned up to the effective date of termination, and (b) all direct reimbursable expenses actually and properly incurred up to such date, but excluding any and all overhead and profit accruing after the date of termination. 16. Relationship of Parties. The Architect is an independent contractor and not an agent or employee of the City. Nothing contained in this Agreement shall be deemed to create a relationship of employer-employee, master-servant, Professional Services Agreement Page 14 of 15 4/21/2003 partnership, joint venture or any other relationship between the City and the Architect other than that of independent contractor. Neither party shall have any authority to supervise the employees, representatives or sub-contractors of the other party, nor to make any statements, representations or commitments of any kind or take any actions which will be binding upon the other party except as specifically provided in this agreement. 17. Entire Agreement. This Agreement constitutes the final and complete agreement between the parties hereto with respect to the subject matter of this Agreement, superceding all prior agreements or discussions with respect thereto. No additions, deletions or modifications hereof shall become part of this Agreement unless each party hereto specifically recognizes and consents to their inclusion by a signed instrument. 18. Disputes a) This Agreement shall be governed by the laws of the State of Washington. b) The Architect consents to consolidation and/or joinder, in a single proceeding, of all claims and disputes by or between the City, sub- contractors, the Architect, the City's other consultants, or any other person or entity involved with the Project, with a claim or dispute relating in any manner to the Architect's services provided by it under this Agreement. c) In any dispute involving the City and the Architect or otherwise arising under or relating to this Agreement, each party shall be responsible for their own attorney's fees and costs, together with any and all expert fees. Professional Services Agreement Page 15 of 15 4/21/2003