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HomeMy WebLinkAbout1999-04-26 Regular Meeting and Workshop Meeting of La Porte City Council e e e e MINUTES OF THE REGULAR MEETING AND WORKSHOP MEETING OF LA PORTE CITY COUNCIL APRIL 26, 1999 1. CALL TO ORDER The meeting was called to order by Mayor Norman Malone at 6:00 p.m. Members of City Council Present: Councilpersons Guy Sutherland, Chuck Engelken, Howard Ebow, Peter Griffiths, Alton Porter, Deotis Gay, Charlie Young, Jerry Clarke, and Mayor Malone. Members of Council Absent: None Members of City Executive Staff and City Emolovees Present: City Manager Robert T. Herrera, Assistant City Attorney John Armstrong, Assistant City Manger John Joerns, Assistant City Manager Jeff Litchfield, City Secretary Martha Gillett, Planning Director Doug Kneupper, Director of Administrative Services Louis Rigby, Fire Chief Joe Sease, Assistant Finance Director Cynthia Alexander, Acting Police Chief Aaron Corrales, Administrative Assistant Carol Buttler, Accounting Manager Kathy Hutton, City Planner Masood Malik. Others Present: Mike Mosteit. 2. Councilperson Deotis Gay delivered the Invocation. 3. Council considered approving the minutes of the Regular Meeting on April 12, 1999. Motion was made bv Counciloerson Griffiths to aoorove the minutes of the Regular Meeting on Aorill2. 1999 as oresented. Second by Councilperson Engelken. The motion carried. Ayes: Sutherland, Engelken, Ebow, Griffiths, Gay, Young, Clarke and Mayor Malone. Nays: None Abstain: Porter 4. PETITIONS, REMONSTRANCES, COMMUNICATIONS, AND CITIZENS AND TAX PAYERS WISHING TO ADDRESS COUNCIL There were no citizens wishing to address Council. 5. Council considered approval or other action regarding a Resolution 99-21 for Texas Public Library Fund. Administrative Assistant Carol Buttler presented summary and recommendation. Motion was made by Councilperson Gay to approve Resolution 99-21 as presented by Ms. Buttler. Second by Councilperson Griffiths. The motion carried unanimously. . e City Council Meeting Minutes - April 26, 1999 - Page 2 Ayes: Sutherland, Engelken, Ebow, Griffiths, Porter, Gay, Young, Clarke, and Mayor Malone Nays: None Abstain: None 6. Council considered approval or other action regarding a Resolution 99-22 declaring intention to reimburse certain expenditures with borrowing proceeds. Assistant City Manager Jeff Litchfield presented summary and recommendation. Motion was made by Councilperson Clarke to approve Resolution 99-22 as presented by Mr. Litchfield. Second by Councilperson Ebow. The motion carried unanimously. Ayes: Sutherland, Engelken, Ebow, Griffiths, Porter, Gay, Young, Clarke, and Mayor Malone Nays: None Abstain: None 7. Council considered approving an ordinance authorizing an agreement between the City of La Porte and Robert W. McKinney AlA to provide professional architectural services for the expansion and renovation of City Hall. Director of Planning Doug Kneupper presented summary and recommendation and answered Council's questions. Assistant City Attorney read: ORDINANCE 99-2322 - APPROVING AND AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND ROBERT W. MCKINNEY AlA TO PROVIDE PROFESSIONAL ARCHITECTURAL SERVICES FOR THE EXPANSION AND RENOVATION OF CITY HALL; APPROPRIATING $121,000.00 TO FUND SAID CONTRACT; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING AN EFFECTNE DATE HEREOF. Motion was made by Councilperson Clarke to approve the Ordinance as presented by Mr. Kneupper. Second by Councilperson Engelken. The motion carried unanimously. Ayes: Sutherland, Engelken, Ebow, Griffiths, Porter, Gay, Young, Clarke, and Mayor Malone Nays: None Abstain: None 8. Council considered ratifying decision of City Manager to approve payment for repairs to the 1994 KME Fire Pumper. Fire Chief Joe Sease presented summary and recommendation. . e City Council Meeting Minutes - April 26, 1999 - Page 3 Motion was made by Councilperson Sutherland to consider ratifying decision of the City Manager to approve payment for repairs to the 1994 KME Fire Pumper. Second by Councilperson Engelken. The motion carried unanimously. Ayes; Sutherland, Engelken, Ebow, Griffiths, Porter, Gay, Young, Clarke, and Mayor Malone Nays: None Abstain: None 9. Special Called Workshop to receive presentation and discuss Metricom right-of-way use agreement and discuss the creation of Development Corporation. The workshop was opened at 6:29 P.M, A. Receive presentation and discuss Metricom Right-of-Way Use Agreement Assistant City Manager Jeff Litchfield introduced Brian Goldman of Metricom and he provided Council with a presentation of the Metricom right-of-way use agreement and services to be provided in the community. B. Discuss Creation of Development Corporation City Manager Robert T. Herrera provided presentation on the creation of a development corporation. Assistant City Manager Jeff Litchfield further outlined details of the requirements to proceed forward with the required implementation process and presented draft Bylaws, The workshop meeting was closed and the Regular Meeting was re-convened at 7;52 P.M. 10. ADMINISTRA TNE REPORTS City Manager Robert T. Herrera reminded Council of the following events: A. City of La PortelLa Porte Independent School District Early Voting - April 14- 27, 1999 B. Seed Banquet - April 29, 1999 11. COUNCIL ACTION Councilpersons Sutherland, Engelken, Ebow, Griffiths, Porter, Gay, Young, Clarke and Mayor Malone brought items to Council's attention. 12. EXECUTIVE SESSION - PURSUANT TO PROVISION OF THE OPEN MEETINGS LAW, CHAPTER 551.071 THROUGH 551.076, AND 551.084, TEXAS GOVERNMENT CODE, - (CONSUL TA TION WITH ATTORNEY, DELIBERATION REGARDING REAL PROPERTY, DELIBERATION REGARDING PROSPECTIVE GIFT OR DONATION, . e City Council Meeting Minutes - April 26, 1999 - Page 4 PERSONNEL MATTERS, CONFERENCE WITH EMPLOYEES DELIBERATION REGARDING SECURITY DEVICES, OR EXCLUDING A WITNESS DURING EXAMINATION OF ANOTHER WITNESS IN AN INVESTIGATION) 551.071 (CONSUL TA TION WITH ATTORNEY). MEET WITH CITY MANAGER AND CITY ATTORNEY TO DISCUSS PENDING LITIGATION AND POTENTIAL CLAIM AGAINST CITY Council retired into Executive Session at 8:05 PM under Section 551.071 (CONSULT A nON WITH A lTORNEY) Meet with City Manager and City Attorney to discuss pending litigation and potential claim against city and received report from City Attorney on pending matter. Council adjourned Executive Session at 8:53 PM. Council returned to the table at 8:54 PM, with no action taken. 13. CONSIDERATION AND POSSIBLE ACTION ON ITEMS CONSIDERED IN EXECUTIVE SESSION No action taken. 14. ADJOURNMENT There being no further business to come before Council, the Regular Meeting was duly adjourned at 8:55 PM. Respectfully submitted, 1lL~~If..;~ City Secretary Passed and approved on this 4th day of May 1999. !k&dne~ . e I REOUES-AtR CITY COUNCH. AGENDA ITE. Agenda Date Requested: AR::riI26. 1999 nV Requested By: Robert T. ~ L Carol Buttl.partment: Administration _ Report XXX Resolution Ordinance Exhibits: 1. Resolution No. SUMMARY & RECOMMENDADON One of the Texas Library Association's responsibilities is to monitor legislation that would impact public libmries. This professional org;mi7Jltion is IeqUesting that all members send resolutions supporting the establishment of the Texas Public Library Fund to the legislature. Cum:ntly, both the House and Senate of the Texas Legislature are considering legislative bills to establish an endowmeut fund (Texas Public Library Fund) fur public libmries. This fund would be outside the State Treaswy, which would prevent the legislature from appropriating the funds fur any purpose and would prevent use of the principal portion of the fund by anyone. Only donations or interest generated by the fund would be available fur grants to public libmries fur construction of fiIcili1ies as well as fur materials and programs. If the State Legislature establishes this type fund, the next step would be to determine a source of funding and criteria fur distributing grants. Action Required by Council: Approve Resolution No. financial aide to public libraries. supporting the establisbment of the Texas Public Library Fund to provide direct Availability of Funds: General Fund _ WaterlWastewater _ Capital Improvement _ General Revenue Sharing Other Account Number: N/A Funds Available: YES NO Aooroved for City Council Aeenda ~~ 1\ Robert T. Herrera City Manager ~ q\~6 \'\\ Date e e REtEST FOR CITY COUNCIL AGENDA 1M AGENDA DATE Aoril26.1999 REQUESTED BY Jeff Litchfield. Finance Director/ACM _ REPORT; XX RESOLUTION; _ ORDINANCE; On January 16, 1999, the voters of La Porte passed a bond election authorizing the issuance of debt to complete certain capital projects. One of those projects was the City Hall Addition. While preliminary work has began on this project, it is not desirable for us to issue debt at this time. Since we are ready to move forward with further design of this project, we recommend the City Council approve a resolution that allows the City to reimburse itself from future bond proceeds for expenditures that are made prior to the issuance of the debt. This is a position that we have taken on several other projects in the past. The attached resolution gives us the option to reimburse ourselves from future bond proceeds for certain costs associated with the above mentioned project. ACTION REQUIRED BY COUNCIL: Approve Resolution declaring intention to reimburse certain expenditures with borrowing proceeds. FUND N/A ACCT NUM: FUNDS AVAILABLE: F 0 n... ERA, CITY MANAGER 4/z.zJqq ~ e RESOLUTION NO. 99-12 2 e RESOLUTION DECLARING INTENTION TO REIMBURSE CERTAIN EXPENDITURES WITH BORROWING PROCEEDS WHEREAS, the City of La Porte, Texas (the "Issuer") desires to pay expenditures in connection with the design, planning, acquisition, construction, equipping, and/or renovating the project or facility described as the City Hall Addition (known as the Project). WHEREAS, Article 717k-6, Vernon's Texas Civil Statutes, as amended ("Article 717k-6") permits the Issuer to use the proceeds of obligations to reimburse the Issuer for costs attributable to the Project paid or incurred before the date of issuance of such obligations; and WHEREAS, the Issuer finds, considers, and declares that the reimbursement of the Issuer for the payment of such expenditures will be appropriate and consistent with the objectives of the Issuer's programs and, as such, chooses to declare its intention, in accordance with the provisions of Section 1.150-2 of the Treasury Regulations, to reimburse itself for such payments at such time as it issuers' obligations to finance the Project. NOW, THEREFORE, BE IT RESOLVED BY THE CIlY COUNCIL OF THE CIlY OF LA PORTE, TEXAS THAT: Section 1. This Resolution declared the intention of the Issuer to reimburse the expenditures for the Project with the proceeds of obligation. The Issuer presently intends to reimburse the expenditure by incurring obligations issued under Texas law the interest on which is excludable from gross income under section 103 of the Internal Revenue Code of 1986, as amended. Section 2. The Issuer reasonably expects to incur debt, in one or more series of obligations, in an aggregate maximum principal amount now estimated to be equal to $1,500,000 for the purpose of paying the costs of the Project. Section 3. The Issuer intends to reimburse the expenditures hereunder not later than 18 months after the date the original expenditure is paid or the date the Project are placed in service or abandoned, but in no event more than three years after the original expenditure is paid unless the Project are a construction project for which the Issuer and a licensed architect or engineer have certified that at least five years are necessary to complete the Project in which event the maximum reimbursement period is five years after the date of the original expenditure. Section 4. The Issuer intends that this Resolution satisfy the official intent requirement set forth in Section 1.150-2 of the Treasury Regulations and evidences its intentions under Article 7171k-6. Section 5. This Resolution shall be liberally construed to evidence the intent of the Issuer to comply with state law and federal income tax law in the issuance of tax-exempt obligations for the Project. PASSED AND APPROVED this the 26th day of April, 1999 ATTEST: ~fiuI, L 0 . cI1v1,(JQ; Mart a A. Gillett, clty Secretary ~ LA PORTE, TEXAS .~ No an L. Malone, Mayor - /l A . : Knox. W. Askins, City Attorney .' e e REOUESTIR CITY COUNCIL AGENDA ITE" Agenda Date Requested: Requested By: Doug Kneupper epartment: Plannning _ Report _ Resolution X Ordinance Exhibits: 1. Ordinance No. 99-2322 2. Professional Services Agreement SUMMARY & RECOMMENDATION In FY 95-96, City Council approved architect Robert W. McKinney, AlA to complete a needs and spaces analysis for City Hall. The study recommended a remodeling of 14,500 sq. ft. and an expansion of 8,500 sq. ft. For the past two budget years, the City has set aside $360,000 per year, totaling $720,000 for funding the renovation portion of the project. Additionally, City voters approved another 1.5 million in the City bond election held in January 1999 for the expansion of City Hall. Together, these funds will be used for the expansion and renovation project. The City requires a Professional Services Agreement with Robert W. McKinney to continue to provide services for design and construction of the City Hall expansion. Staff is recommending Council approve $115,000 for the full architectural services for the City Hall expansion and renovation, plus an estimated $6,000 in reimbursable expenses for a total authorization of $121,000. Bids will be received approximately 8 months after the Notice To Proceed. Action Required by Council: Approve Ordinance No. 99-2322 authorizing the City Manager to enter into a professional services agreement with Robert W. McKinney, AlA for complete architectural services for the City Hall expansion and renovation and providing $121,000 to fund said agreement. Availability of Funds: General Fund_ Water/Wastewater -X Capital Improvement_ General Revenue Sharing -X Other Account Number: 015-9892-758-1100 Funds Available: XXX YES NO e e ORDINANCE NO. 99-2 3 22 AN ORDINANCE APPROVING AND AUTHORIZING AN AGREEMENT BETWEEN THE CITY OF LA PORTE AND ROBERT W. MCKINNEY AlA TO PROVIDE PROFESSIONAL ARCHITECTURAL SERVICES FOR THE EXPANSION AND RENOVATION OF CITY HALL; APPROPRIATING $121,000.00 TO FUND SAID CONTRACT; MAKING VARIOUS FINDINGS AND PROVISIONS RELATING TO THE SUBJECT; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: Section 1. The City Council hereby approves and authorizes the contract, agreement, or other undertaking described in the title of this ordinance, in substantially the form as shown in the document which is attached hereto and incorporated herein by this reference. The City Manager is hereby authorized to execute such document and all related documents on behalf of the City of La Porte. The City Secretary is hereby authorized to attest to all such signatures and to affIX the seal of the City to all such documents. The City Council appropriates the sum not to exceed $121,000.00 for professional architectural services for the expansion and renovation of City Hall, from General Capital Improvement Fund 015 to fund said contract. Section 2. The City Council officially fmds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required e e ORDINANCE NO. 99-2322"1t by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confl.I1Ils such written notice and the contents and posting thereof. Section 3. This Ordinance shall be effective from and after its passage and approval, and it is so ordered. PASSED AND APPROVED, this 26h day of April, 1999. ~ITY F LA PORTE -~~4nc N an L. Malone, Mayor By: ATIEST: ~d' dJ/al M a Gillett City Secretary e e AGREEMENT BETWEEN OWNER AND ARCHITECT FOR PROFESSIONAL SERVICES City Hall Expansion CLP Project No. 99-2206 April 1999 e e TABLE OF CONTENTS TABLE OF CONTENTS IDENTIFICATION OF THE PARTIES/PROJECT DESCRIPTION SECTION 1 BASIC SERVICES OF ARCHITECT 1.1 General 1.2 Schematic Design Phase 1.3 Design Development Phase 1.4 Construction DOQJments Phase 1.5 Bidding or Negotiation Phase 1.6 Construction Phase 1.7 Operational Phase SECTION 2 ADDITIONAL SERVICES OF ARCHITECT 2.1 Services Requiring Authorization in Advance 2.2 Required Additional Services SECTION 3 OWNER'S RESPONSIBILITIES SECTION 4 PERIODS OF SERVICE SECTION 5 PAYMENT TO ARCHITECT SECTION 6 CONSTRUCTION COST AND OPINIONS OF COST 6.1 Construction Cost 6.2 Opinions of Cost SECTION 7 GENERAL CONSIDERATIONS 7.1 Tennination 7.2 Reuse of Documents 7.3 Insurance 7.4 Controlling Law 7.5 Successors and Assigns 7.6 Arbitration SECTION 8 SPECIAL PROVISIONS, EXHIBITS AND SCHEDULES Exhibit A FURTHER DESCRIPTION OF ARCHITECT BASIC SERVICES AND RELATED MATTERS Exhibit B DUTIES, RESPONSIBILITIES AND LIMITATIONS OF AUTHORITY OF THE RESIDENT PROJECT REPRESENTATIVE Exhibit C PROJECT COMMUNICATION Exhibit D INSURANCE Pagels) ii 1-1 through 1-8 2-1 through 2-3 3-1 through 3-3 4-1 through 4-2 5-1 through 5-3 6-1 through 6-2 7-1 through 7-2 8-1 A-1 through A-3 B-1 through 8-5 C-1 0-1 e e AGREEMENT BETWEEN OWNER AND ARCHITECT FOR PROFESSIONAL SERVICES THIS IS AN AGREEMENT made as of April 26, 1999 between the City of La Porte, Texas (OWNER) and Robert W. McKinney AJA (ARCHITECT). OWNER intends to: Design and construd the expansion and renovation of the existing City Hall, consisting of approximately 8,500 square feet of new construdion and 14,500 square feet of renovation. The work will be based on the findings of the City Hall Expansion report completed in Odober 1996 along with any additions or revisions to the report that may be authorized under this Agreement. (hereinafter called the PROJECT). The OWNER and ARCHITECT agree as set forth below. ii e e SECTION 1 - BASIC SERVICES OF ARCHITECT 1.1 General 1.1.1 ARCHITECT shall provide for OWNER professional architectural services in all phases of the Project to which this Agreement applies as hereinafter provided. These services will include serving as OWNER's professional representative for the Project, providing professional consultation and advice and furnishing customary civil, structural, mechanical, and electrical engineering services incidental thereto. 1.1.2 The ARCHITECT's services shall be perfonned as expeditiously as is consistent with professional skill and care and the orderly progress of the work. The ARCHITECT shall submit for the OWNER's approval a schedule for the perfonnance of the ARCHITECT's services, which shall include allowances for periods of time required for the OWNER's review and for approval of submissions by authorities having jurisdiction over the Project. Time limits established by this schedule approved by the OWNER shall not, except for reasonable cause, be exceeded by the ARCHITECT. 1.1.3 The ARCHITECT's services consist of those services perfonned by the ARCHITECT, ARCHITECT's employees and ARCHITECT's consultants employed as hereinafter provided. 1.2 Schematic Design Phase After written authorization to proceed with the Schematic Design Phase, the ARCHITECT shall: 1.2.1 Consult with the OWNER to clarify and redefine OWNER'S requirements for the Project and review available data and shall arrive at a mutual understanding of any amended requirements with the OWNER. 1.2.2 The ARCHITECT shall provide a preliminary evaluation of the OWNER'S program, schedule and construction budget requirements, each in tenns of the other, subject to the limitations set forth. 1.2.3 The ARCHITECT shall review with the OWNER alternative approaches to design and construction of the Project and provide a general economic analysis of various alternatives in writing. 1.2.4 Based on the mutually agreed-upon program, schedule and construction budget requirements, the ARCHITECT shall prepare, for the OWNER, revised Schematic Design Drawings and other related documents. The Schematic Design Documents will include the ARCHITECT'S opinion of probable costs for the project, including the following, which will be separately itemized: Construction Cost(s): materials and equipment costs, 1-1 e e materials testing and equipment costs, allowances for laboratory testing, appropriate contingencies, and special instructions, Allowance for ArchitecturaVEngineering Cost(s): estimated expenses for daily. project representation during construction, appropriate contingencies, and (if furnished by OWNER) allowances for such other items as charges of other professionals and consultants, for the cost of land and rights-of-way, for compensation for or damages to properties, for interest and financing charges and for other services to be provided by others for OWNER pursuant to paragraphs 3.7 through 3.11, inclusive. The total of all such costs, allowances, etc. are hereinafter called "Total Project Costs". The duties and responsibilities of ARCHITECT during the Schematic Design Phase are amended and supplemented as indicated in paragraph 2 of Exhibit A "Further Desaiptions of Basic Services and Related Matters". 1.3 Design Development Phase After written authorization to proceed with the Design Development Phase, ARCHITECT shall: 1.3.1 In consultation with OWNER and based on the approved Schematic Design documents and any adjustments authorized (in writing) by the OWNER in the program schedule or construction budget, the ARCHITECT shall determine the general scope, extent and character of the Project. 1.3.2 The ARCHITECT shall prepare Design Development documents consisting of final design criteria, preliminary drawings, outline specifications and written descriptions of the Project. 1.3.3 Advise OWNER if additional data or services of the type described in paragraph 3.4 are necessary and assist OWNER in obtaining such data and services. 1.3.4 Based on the information contained in the Design Development documents, submit a revised opinion of probable Total Project Costs (as defined in paragraph 1.2.4). 1.3.5 Furnish five copies of the above Design Development documents and present and review them in person with OWNER. The duties and responsibilities of ARCHITECT during the Design Development Phase are amended and supplemented as indicated in paragraph 3 of Exhibit A "Further Description of Basic Services and Related Matters". 1.4 Construction Documents Phase 1-2 e e After written authorization to proceed with the Final Construction Documents Phase, ARCHITECT shall: 1.4.1 Based on the approved Design Development Documents and any further adjustments in the scope or quality of the PROJECT, in the construction budget or in the total PROJECT budget authorized in writing by the OWNER, the ARCHITECT shall prepare, for approval by the OWNER, Construction Documents consisting of Drawings (hereinafter called Drawings) and Specifications setting forth in detail the requirements for the construction of the PROJECT by Contractor(s). The specifications shall be preoared in conformance with the sixteen-division format of the Construction Specifications Institute. 1.4.2 See that the Construction Documents include applicable requirements/approvals of governmental authorities having jurisdiction to approve the design of the project. Provide technical criteria. written descriptions and design data for OWNER's use in filing applications for permits with or obtaining approvals of such governmental authorities as have jurisdiction to approve the design of the Project. and assist OWNER in completing permit application and in consultation with appropriate authorities. 1.4.3 Advise OWNER of any adjustments to the latest opinion of probable Total Project Costs (as defined in paragraph 1.2.4) caused by changes in general scope, extent or character or design requirements of the Project or Construction Costs. Furnish to OWNER a revised opinion of probable Total Project Costs based on the Drawings and Specifications. 1.4.4 Prepare for review and approval by OWNER, its legal counsel and other advisors contract agreement forms, general conditions and supplementary conditions. and bid forms. invitations to bid and instructions to bidders and other related documents. The ARCHITECT will initially submit to OWNER the Contractor Agreement (in the form of AlA document A 101) and the General Conditions of the Contract (in the form of AlA document A201) for OWNER'S review. comment. modification. and approval. 1.4.5 Furnish five copies of the above documents (following approval) and of the Drawings and Specifications and present and review them in person with OWNER. The duties and responsibilities of ARCHITECT during the Construction Documents Phase are supplemented as indicated in paragraph 4 of Exhibit A "Further Description of Basic Services and Related Matters". 1.5 Bidding or Negotiation Phase After written authorization to proceed with the Bidding or negotiation Phase, ARCHITECT shall: 1.5.1 Following the OWNER's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost the ARCHITECT shall assist OWNER in advertising for and obtaining bids or negotiating proposals for the prime contract for 1-3 e e construction, materials, equipment and services; and, where applicable, maintain a record of prospective bidders to whom Bidding Documents have been issued, attend pre-bid conferences and receive and process deposits for Bidding Documents. 1.5.2 Issue addenda as appropriate to interpret, clarify or expand the Bidding Documents. 1.5.3 Consult with and advise OWNER as to the acceptability of subcontractors, suppliers and other persons and organizations proposed by the prime contractor (herein called "Contractor" for those portions of the work as to which such acceptability is required by the Bidding Documents. 1.5.4 Consult with OWNER concerning and determine the acceptability of substitute materials and equipment proposed by Contractor when substitution prior to the award of contracts is allowed by the Bidding Documents. 1.5.5 Attend the bid opening, prepare bid tabulation sheets and assist OWNER in evaluating bids or proposals and in assembling and awarding the contract(s) for construction, materials, equipment and services. The duties and responsibilities of ARCHITECT during the Bidding or Negotiation Phase are amended and supplemented as indicated in paragraph 5 of Exhibit A "Further Description of Basic Services and Related Matters". 1.6 Construction Phase After written authorization to proceed with the Construction Phase, ARCHITECT shall: 1.6.1 General Administration of Construction Contract ARCHITECT shall consult with and advise OWNER and act as OWNER's representative as provided in the Standard General Conditions of the Construction Contract (as approved by OWNER per paragraph 1.4.4). The extent and Iim itations of the duties, responsibilities and authority of ARCHITECT as assigned in said Standard General Conditions shall not be modified, except to the extent provided in paragraph 6 of Exhibit A "Further Description of Basic Services and Related Matters" and except as the ARCHITECT may otherwise agree in writing. All of OWNER's instructions to Contractor(s) will be issued through ARCHITECT who will have authority to act on behalf of OWNER to the extent provided in said Standard General Conditions except as otherwise provided in writing. 1.6.2 Visits to Site and Observation of Construction. In connection with observation of the work of Contractor(s) while it is in progress: 1-4 e e 1.6.2.1 ARCHITECT shall make visits to the site at intervals appropriate to the various stages of construction as ARCHITECT deems necessary in order to observe as an experienced and qualified design professional the progress and quality of the various aspects of Contractor(s)' work. In addition, the ARCHITECT and/or OWNER may provide the services of a Resident Project Representative (and assistants as agreed) at the site to assist ARCHITECT and to provide more continuous observation of such work. Based on information obtained during such visits and on such observations, ARCHITECT shall endeavor to determine in general if such work is proceeding in accordance with the Contract Documents and ARCHITECT shall keep OWNER informed of the progress of the work. 1.6.2.2The Resident Project Representative (and assistants) may be ARCHITECT's agent or employee and under ARCHITECT's supervision or may be the OWNER's agent or employee and under OWNERS supervision. The duties and responsibilities of the Resident Project Representative (and assistants)' are set forth in Exhibit B "Duties, Responsibilities and Limitation of Authority of Resident Project Representative". Any exceptions or modifications to these responsibilities and limitations will be mutually agreed upon by both parties in writing. 1.6.2.3The purpose of ARCHITECT's visits to and representation by the Resident Project Representative (and assistant, if any) at the site will be to enable ARCHITECT to better carry out the duties and responsibilities assigned to and undertaken by ARCHITECT during the Construction Phase, and, in addition, by exercise of ARCHITECT's efforts as an experienced and qualified design professional, to provide for OWNER a greater degree of confidence that the completed work of Contractor(s) will conform generally to the Contract Documents and that the integrity of the design concept as reflected in the Contract Documents has been implemented and preserved by Contractor(s). On the other hand, ARCHITECT shall not, during such visits or as a result of such observations of Contractor(s)' work in progress, supervise, direct or have control over Contractor(s)' work nor shall ARCHITECT have authority over or responsibility for the means, methods, techniques, sequences or procedures of construction selected by Contractor(s), for safety precautions and programs incident to the work of Contractor(s), for safety precautions and programs incident to the work of Contractor(s) or for any failure of Contractor(s) to comply with laws, rules, regulations, ordinances, codes or orders applicable to Contractor(s) fumishing and performing their work. 1.6.4 Interpretations and Clarifications ARCHITECT shall issue necessary interpretations and clarifications of the Contract Documents and in connection therewith prepare work directive changes; and after consultation with owner, prepare change orders as required for owners review and approval. 1.6.5 Shop Drawings ARCHITECT shall review and approve (or take other appropriate action in respect of) Shop Drawings (as that term is defined in the General Conditions), product data, sample(s) and other data which Contractor(s) are required to submit, but only for 1-5 e e conformance with the design concept of the Project and compliance with the information given in the Contract Documents. Such reviews and approvals or other action shall not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions and programs incident thereto. 1.6.6 Substitutes ARCHITECT shall evaluate and determine the acceptability of substitute materials and equipment proposed by Contractor(s), but subject to the provision of paragraph 2.2.2. (Required Additional Services) All substitutes shall be approved by OWNER. 1.6.7 Inspections and Tests ARCHITECT shall advise OWNER and OWNER shall approve of any special inspection or testing of the work, and ARCHITECT shall receive and review all certificates of inspections, testings and approvals required by laws, rules, regulations, ordinances, codes, orders or the Contract Documents (but only to determine generally that their content complies with the requirements of, and the results certified indicate compliance with the Contract Documents.) 1.6.8 Disputes between OWNER and Contractor ARCHITECT shall act as initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the work thereunder and make decisions on all claims of OWNER and Contractor(s) relating to the acceptability of the work or the interpretation of the requirements of the Contract Documents pertaining to the execution and progress of the work. ARCHITECT shall not be liable for the results of any such interpretations or decisions rendered in good faith. 1.6.9 Applications for Payment Based on ARCHITECrs on-site observations as an experienced and qualified design professional, on information provided by the Resident Project Representative and on review of applications for payment and the accompanying data and schedules: 1.6.9. 1 ARCHITECT shall determine the amounts owing to Contractor(s) and recommend in writing payments to Contractor(s) in such amounts. Such recommendations of payment will constitute a representation to OWNER, based on such observations and review, that the work has progressed to the point indicated, and that, to the best of ARCHITECrs knowledge, information and belief, the quality of such work is generally in accordance with the Contract Documents (subject to an evaluation of such work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contrad Documents and to any other qualifications stated in the recommendation). In the case of unit price work, ARCHITECrs recommendations of payment will include final 1-6 e e determinations of quantities and classifications of such work (subject to any subsequent adjustments allowed by the Contract Documents). 1.6.9.2By recommending any payment ARCHITECT will not thereby be deemed to have represented that exhaustive, continuous or detailed reviews or examinations have been made by ARCHITECT to check the quality or quantity of Contractor(s)' work as it is furnished and performed beyond the responsibilities specifically assigned to ARCHITECT in this Agreement and the Contract Documents. ARCHITECrs review of Contractor(s)' work for the purposes of recommending payments will not impose on ARCHITECT responsibility to supervise, direct or control such work or for the means, method techniques, sequences, or procedures of construction or safety precautions or programs incident thereto or Contractor(s) compliance with laws, rules, regulations, ordinances, codes or orders applicable to their furnishing and performing the work. It will also not impose responsibility on ARCHITECT to make any examination to ascertain how or for what purposed any contractor has used the moneys paid on account of the Contract Price, or to determine that title to any of the work, materials or equipment has passed to OWNER free and clear of any lien, claims, security interests or encumbrances, or that there may not be other matters at issue between OWNER and CONTRACTOR that might affect the amount that should be paid. 1.6.10 Contractor(s)' Completion Documents ARCHITECT shall receive and review maintenance and operating instructions, schedules, guarantees, bonds and certificates of inspection, tests and approvals which are to be assembled by Contractor(s) in accordance with the Contract Documents (but such review will only be to determine that their content complies with the requirements of, and in the case of certificates of inspection, test and approvals the results certified indicate compliance with, the Contract Documents); and shall bind, index and transmit them to OWNER together with written comments. 1.6.11 Inspections ARCHITECT shall conduct an inspection to determine jf the work is substantially complete and a final inspection to determine if the completed work is acceptable so that ARCHITECT may recommend, in writing, final payment to Contractor(s) and may give written notice to OWNER and the Contractor(s) that the work is acceptable (subject to any conditions therein expressed), but any such recommendation and notice will be subject to the limitations expressed in paragraph 1.6.9.2. 1.6.12 Limitation of Responsibilities ARCHITECT shall not be responsible for the acts or omissions of any Contractor, or of any subcontractor or supplier, or any of the Contractor(s) or subcontractor's or supplier's agents or employees or any other persons (except ARCHITECrs own employees and agents) at the site or otherwise furnishing or performing any of the Contractor(s)' work; however, nothing contained in paragraphs 1.6.1 through 1.6.11 inclusive, shall be construed to release ARCHITECT from liability for failure 1-7 e e to properly perfonn duties and responsibilities assumed by ARCHITECT in the Contract Documents. The duties and responsibilities of the ARCHITECT during the Construction Phase are amended and supplemented as indicated in Paragraph 6, Exhibit A "Further Description of Basic Services and Related Matters". 1.7 Operational Phase During the Operational Phase. ARCHITECT shall: 1.7.1 Furnish the deliverable items referred to in Section 1.6.10 and in the Operational Phase and present and review them in person with OWNER. 1.7.2 Define in Contract Documents the Contractor(s) (and or Vendor(s)) responsibility in connection with the start up, refining, and adjustment of any equipment or system. 1.7.3 Define in Contract Documents the Contractor(s) (and or Vendor(s)) responsibility for training owners staff to operate and maintain any equipment or system and for reviewing pertinent manuals, submittals. shop drawings. and warranties supplied by the Contractor(s), Vendor(s). or Manufacturer(s) as the case may be. 1.7.4 Coordinate, attend and participate in the start up and training orientations as described in paragraphs 1.7.2 and 1.7.3. 1.7.5 Record Drawings. ARCHITECT shall furnish the OWNER a set of marked up prints, drawings and other data kept by the Contractor(s). and Project Representative (if employed by the ARCHITECT) in a fonn and manner that clearly depicts significant changes made during the construction process. 1.7.6 At a time eleven (11) months following Substantial Completion of the project (one month prior to expiration of the Contractor's warranty period). the ARCHITECT. in the company of the OWNER. will visit the project to observe any apparent defICiencies in the completed construction, and document any items observed in a written report issued to the CONTRACTOR and OWNER. 1.7.7 During the Operational Phase. the ARCHITECT will assist the OWNER in consultations and discussions with CONTRACTOR concerning the correction of deficiencies brought to the ARCHITECrs attention, and when appropriate. review or make written recommendations regarding replacement or correction of the Work as proposed by the Contractor. 1-8 e e SECTION 2 - ADDITIONAL SERVICES OF ARCHITECT 2.1 Services Requiring Authorization in Advance If authorized in writing by OWNER, ARCHITECT shall furnish or obtain from others Additional Services of the types listed in paragraphs 2.1.1 through 2.1.14, inclusive. These services are not included as part of Basic Services except to the extent provided otherwise in Exhibit A "Further Description of Basic Services and Related Matters"; these will be paid for by OWNER as indicated in Section 5. 2.1.1 Preparation of applications and supporting dOaJments (in addition to those furnished under Basic Services) for private or governmental grants, loans or advances in connection with the Project; preparation or review of environmental assessments and impact statements; review and evaluation of the effect on the design requirements of the Project of any such statements and documents prepared by others; and assistance in obtaining approvals of authorities having jurisdiction over the anticipated environmental impact of the Project. . 2.1.2 Services to make measured drawings of or to investigate existing conditions or facilities, or to verify the accuracy of drawings or other information furnished by OWNER. 2.1.3 Services resulting from significant changes in the general scope, extent or character of the Project or its design including, but not limited to, changes in size, complexity, OWNER's schedule, character of construction or method of financing; and revising previously accepted studies, reports, design documents or Contract Documents when such revisions are required by changes in laws, rules, regulations, ordinances, codes or orders enacted subsequent to the preparation of such studies, reports or documents, or are due to any other causes beyond ARCHITECTs control. 2.1.4 Providing renderings or models for OWNER's use. 2.1.5 Preparing dOaJments for alternate bids requested by OWNER for Contractor(s)' work. which is not executed or documents for out-of-sequence work.. 2.1.6 Investigations and studies involving, but not limited to, detailed consideration of operations, maintenance and overhead expenses; providing value engineering during the course of design; the preparation of feasibility studies, cash flow and economic evaluations, rate schedules and appraisals; assistance in obtaining financing for the Project; evaluation processes available for licensing and assisting OWNER in obtaining process licensing; detailed quantity surveys of material, equipment and labor; and audits or inventories required in connection with construction performed by OWNER. 2.1.7 Furnishing services of independent professional associates and consultants for other than Basic Services (which include, but are not limited to, customary civil, structural, mechanical and electrical engineering and customary architectural design incidental thereto); and providing data or services of the types described in paragraph 3.4 when 2-1 e e OWNER employs ARCHITECT to provide such data or services in lieu of furnishing the same in accordance with paragraph 3.4. 2.1.8 If ARCHITECT's compensation is on the basis of a lump sum or percentage of Construdion Cost or cost-plus a fIXed fee method of payment, services resulting from the award of more separate prime contrads for construdion, materials, equipment or services for the Projed shall be compensated in accordance with paragraph 5.1.2. 2.1.9 Services during out-()f-town travel required of ARCHITECT other than visits to the site or OVVNER's office as required by Sedion 1. 2.1.10 Assistance in conned ion with bid protests, rebidding or renegotiating contrads for construdion, materials, equipment or services, except when such assistance is required to complete services called for in paragraph 6.2.2.5. 2.1.11 Providing any type of property surveys or related professional services needed for the transfer of interests in real property and field surveys for design purposed and any necessary surveys and staking to enable Contrador( s) to proceed with their work; and providing other special field surveys. 2.1.12 Preparation of operating, maintenance and staffing manuals to supplement Basic Services under paragraph 1.7.3. 2.1.13 Preparation of a set of reproducible record prints of drawings Showing those significant changes made during the construdion process, based on the marked up prints, drawings and other data furnished by Contrador(s) and Resident Projed Representative to ARCHITECT. Prior to preparation of record drawings, the ARCHITECT and OWNER will mutually agree on which changes are considered significant. 2.1.14 Preparing to serve or serving as a consultant or witness for OWNER in any litigation, arbitration or other legal or administrative proceeding involving the Project (except for assistance in consultations which is included as part of Basic Services under paragraphs 1.2.3 and 1.4.2). 2.1.15 Additional services required in connedion with the Projed, including services required which were not furnished by OWNER in accordance with Sedion 3, and services not otherwise provided for in this Agreement. 2.2 Required Additional Services When required by the Contrad Documents in circumstances beyond ARCHITECrs control, ARCHITECT shall furnish or obtain from others, as circumstances require during construdion Additional Services of the types listed in paragraphs 2.2.1 through 2.2.6, inclusive (except to the extent otherwise provided in Exhibit A ''Further Desaiption of Basic Services and Related Matters"). These services are not included as part of Basic Services. ARCHITECT shall advise OWNER promptly of need for required additional services. If the OWNER is in agreement, OWNER shall provide authorization to 2-2 e e ARCHITECT for such Additional Services, which wilf be paid for by OWNER as indicated in Sedion 5. 2.2.1 Services in connedion with work directive changes and change orders to reflect changes requested by OWNER if the resulting change in compensation for Basic Services is not commensurate with the addition services rendered. 2.2.2 Services in making revisions to Drawings and Specifications occasioned by the OWNER's acceptance of substitutions proposed by Contrador(s); and services after the award of each contrad in evaluation and determining the acceptability of an unreasonable or excessive number of substitutions proposed by Contractor. 2.2.3 Services resulting from significant delays, changes or price inaeases occurring as a dired or indired result of material, equipment or energy shortages. 2.2.4 Additional or extended services during construction made necessary by (1) work damaged by fire or other cause during construdion, (2) a significant amount of defective or neglected work of any Contrador, (3) acceleration of the progress schedule involving services beyond normal working hours, and (4) default by any Contrador. 2.2.5 Services (other than Basic Services during the Operation Phase) in connection with any partial utilization of any part of the Projed by OWNER prior to Substantial Completion. 2.2.6 Evaluating an unreasonable or extensive number of claims submitted by Contrador( s) or others in connection with the work. 2-3 e e SECTION 3 - OWNER'S RESPONSIBILITIES OWNER shall do the following in a timely a manner so as not to delay the services of ARCHITECT: 3.1 Designate in writing a person to act as OWNER's representative with respect to the services to be rendered under this Agreement. Such person shall have complete authority to transmit instructions, receive information, interpret and define OWNER's policies. and decisions with resped of ARCHITECrs services for the Project. 3.2 Provide all aiteria and full information as to OWNER's requirements for the Project, including design objectives and constraints, space, capacity and performance requirements, flexibility and expandability, and any budgetary limitations; and furnish copies of all design and construction standards which OWNER will require to be included in the Drawings and Specifications. 3.3 Assist ARCHITECT by placing at ARCHITECrs disposal all available information pertinent to the Project including previous reports and any other data relative to design or construction of the Project. 3.4 Furnish to ARCHITECT, as required for performance of ARCHITECrs Basic Services (except to the extent provided otherwise in Exhibit A ''Further Desaiption of Basic Services and Related Matters"), the following: 3.4.1 Data prepared by or services of others, including without limitation borings, probings and subsurface explorations, hydrographic surveys, laboratory tests and inspections of samples, materials and equipment; 3.4.2 appropriate professional interpretations of all of the foregoing; 3.4.3 environmental assessment and impact statements; 3.4.4 property, boundary, easement, and right-of-way, topographic, and utility surveys and related office computations and drafting; 3.4.5 property descriptions; 3.4.6 zoning, deed and other land use restriction; and 3.4.7 other special data or consultation not covered in Section 2; all of which ARCHITECT may use and rely upon in performing services under this Agreement. 3.5 Provide engineering surveys to establish reference points for construction (except to the extent provided otherwise in Exhibit A "Further Desaiption of Basic Services and Related Matters") to enable Contractor( s) to proceed with the layout of the work. 3-1 e e 3.6 Arrange for access to and make all provisions for ARCHITECT to enter upon public and private property as required for ARCHITECT to perfonn services under this Agreement. 3.7 Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by ARCHITECT, obtain advice of an attorney, insurance counselor and other consultants as OWNER deems appropriate for such examination and render in writing decisions pertaining thereto within a reasonable time so as not to delay the services of ARCHITECT. 3.8 Furnish approvals and permits from all governmental authorities having jurisdiction over the project and such approvals and consents from others as may be necessary for completion of the Project. ARCHITECT will assist the OWNER in the preparation of said permits. 3.9 Provide such accounting, independent cost estimating and insurance counseling services as may be required for the Project, such legal services as OWNER may require or ARCHITECT may reasonably request with regard to legal issues pertaining to the Project including any that may be raised by Contractor(s), such auditing service as OWNER may require to ascertain how or for what purpose any Contractor has used the moneys paid under the construction contract, and such inspection services as OWNER may require to ascertain that Contractor(s) are complying with any law, rule, regulation, ordinance, code or order applicable to their furnishings and performing the work. 3.10 If OWNER designates a person to represent OWNER as the site who is not ARCHITECT or ARCHITECrs agent or employee, the duties, responsibilities and limitations of authority of such other person and the effed thereof on the duties and responsibilities of ARCHITECT and the Resident Project Representative (and any assistants) will be set forth in an exhibit that is to be identified, attached to and made a part of this Agreement before such services begin. 3.11 If more than one prime contract is to be awarded for construction, materials, equipment and services for the entire Project, designate a person or organization to have authority and responsibility for coordinating the activities among the various prime contradors. 3.12 Furnish to ARCHITECT data or estimated figures as to OWNER's anticipated costs for services to be provided by others for OWNER (such as services pursuant to paragraphs 3.7 through 3.11, inclusive and other costs of the types referred to in paragraph 1.2.6) so that ARCHITECT may make the necessary findings to support opinions of probable Total Project Costs. 3.13 Attend the pre-bid conference, bid opening, preconstruction conferences, construction progress and other job related meetings and substantial completion inspections and flf1al payment inspections. 3-2 .e e 3.14 Give prompt written notice to ARCHITECT whenever OWNER observes or otherwise becomes aware of any development that affects the scope or timing of ARCHITECrs services, or any defect or nonconformance in the work of any Contrador. 3.15 Furnish, or dired ARCHITECT to provide, Additional Services as stipulated in paragraph 2.1 of this Agreement or other services as required. 3.16 During the Operational Phase, the OWNER will document all warranty items brought to the Contractor's attention in writing to the ARCHITECT. 3.17 Bear all costs incident to compliance with the requirements of this Section 3. 3-3 . e SECTION 4 - PERIODS OF SERVICE 4.1 The provisions of this Section 4 and the various rates of compensation for ARCHITECrs services provided for elsewhere in this Agreement have been agreed to in anticipation of the orderly and continuous progress of the Project through completion of the Construction Phase. ARCHITECrs obligation to render services hereunder will extend for a period which may reasonably be required for the design, award of contracts, construction and initial operation of the Project including extra work and required extensions thereto. If in Exhibit A "Further Description of Basic Services and Related Matters" specific periods of time for rendering services are set forth or specific dates by which services are to be completed are provided and if such dates are exceeded through no fault of ARCHITECT, all rates, measures and amounts of compensation provided herein shall be subject to equitable adjustment. 4.2 The services called for in the Schematic Design Phase will be completed and the Schematic Design submitted within the stipulated period indicated in paragraph 2 of Exhibit A "Further Desaiption of Basic Services and Related Matters" after written authorization to proceed with that phase of services which will be given by OWNER within thirty days after ARCHITECT has signed this Agreement. 4.3 After acceptance by OWNER of the Schematic Design Phase documents indicating any specific modifications or changes in the general scope, extent or character of the Project desired by OWNER, and upon written authorization from OWNER, ARCHITECT shall proceed with the performance of the services called for in the Design Development Phase, and shall submit preliminary design documents and a revised opinion of probable Total Project Costs within the stipulated period indicated in paragraph 3 of Exhibit A ''Further Description of Basic Services and Related Matters". 4.4 After acceptance by OWNER of the Design Development Phase documents, indicating any specific modifications or changes in the general scope, extent or character of the Project desired by OWNER, and upon written authorization from O\tVNER, ARCHITECT shall proceed with the performance of the services called for in the Construction Documents Phase; and shall deliver Contract Documents and a revised opinion of probable Total Project Costs for all work of Contractor(s) on the Project within the stipulated period indicated in paragraph 4 of Exhibit A "Further Desaiption of Basic Services and Related Matters". 4.5 ARCHITECTs services under the Schematic Design Phase, Design Development and Construction Documents shall each be considered complete at the earlier of (1) the date when the submissions for that phase have been accepted by OWNER or (2) thirty days after the date when such submissions are delivered to OWNER for final acceptance, plus in each case such additional time as may be required for obtaining approval of governmental authorities having jurisdiction to approve the design of the Project. 4.6 After acceptance by OWNER of the ARCHITECrs Drawings, Specifications and Construction Documents Phase documentation including the most recent opinion of 4-1 . e probable Total Project Cost and upon written authorization to proceed, ARCHITECT shall proceed with performance of the services called for in the Bidding or Negotiating Phase. This Phase shall terminate and' the services to be rendered thereunder shall be considered complete upon commencement of the Construdion Phase or upon cessation of negotiations with prospective Contractor(s) except as may otherwise be required to complete their services called for in paragraph 6.2.2.5). 4.7 The Construction Phase will commence with the execution of the prime contract to be executed for the work of the Project or any part thereof, and will terminate sixty (60) days after a) the adual date of Substantial Completion. Construdion Phase services may be rendered at different times in respect of separate prime contracts if the Project involves more than one prime contract. 4.8 The Operational Phase will commence during the Construction Phase and will terminate one year after the date of Substantial Completion of the prime contract for construction, materials and equipment on which substantial completion is achieved. 4.9 If OWNER has requested significant modifications or changes in the general scope, extent or character of the Project, the time of performance of ARCHITECT's services shall be adjusted equitably. 4.10 If OWNER fails to give prompt written authorization to proceed with any phase of services after completion of the immediately preceding phase, or if the Construction Phase has not commenced within 180 calendar days (plus such additional time as may be required to complete the services called for under paragraph 6.2.2.5) after completion of the Final Design Phase, ARCHITECT may, after giving seven days written notice to OWNER, suspend services under this Agreement. 4.11 If ARCHITECrs services for design or during construction of the Project are delayed or suspended in whole or in part by OWNER for more than three months for reasons beyond ARCHITECrs control, ARCHITECT shall on written demand to OWNER (but without termination of this Agreement) be paid as provided in paragraph 4.1.1. If such delay or suspension extends for more than one year for reasons beyond ARCHITECT's control, or if ARCHITECT for any reason is required to render Construction Phase services in respect of any prime contract for construction, materials or equipment more than 60 days after Substantial Completion is achieved under that contract, the various rates of compensation provided for elsewhere in this Agreement may be subject to equitable adjustment. 4.12 In the event that the work designed or specified by ARCHITECT is decided to be furnished or performed under more than one prime contract. the ARCHITECT will be compensated in accordance with Daragraph 5.1.2. 4-2 . e SECTION 5 - PAYMENTS TO ARCHITECT 5.1 OWNER has established an initial construction cost limit of one million four hundred thirty-fIVe thousand fifty-three dollars ($ 1,435,053.00) available for construction. 5.1.1 For Basic Services. OWNER shall pay ARCHITECT for Basic Services rendered under Section 1 (as amended and supplemented by Exhibit A "Further Description of Basic Services and Related Matters'1 as follows: 5.1.1.1 A lump sum in the amount of one hundred fifteen thousand dollars {$ 115,ooO}. Progress payments for Basic Services in each phase shall total the following percentages of the total basic compensation payable: Schematic Design Phase Design Development Phase Construction Documents Phase Bidding or Negotiation Phase Construction Phase Operational Phase fifteen percent twenty percent thirty-five percent five percent twenty percent five percent ( 15%) ( 20%) ( 35%) ( 5%) ( 20%) ( 5%) Total Compensation for Basic Services $115,000 5.1.1.2Should the ARCHITECrs Preliminary Construction Cost Estimate or the lowest bona fide proposal or bid amount exceed the amount in section 5.1 as available for construction, the ARCHITECT may be required at the disaetion of the OWNER to amend the design to bring the construction cost estimate or bid amount within the amount specified without additional cost to the OWNER. 5.1.1.31f the work is not carried on after Construction Document Phase and drawings, specifications and Construction Documents are completed and approved, the OVVNER will pay the ARCHITECT through the Construction Documents Phase in accordance with Section 5.1.1 above; or, if the bids have been received, the OWNER will pay the ARCHITECT seventy-five percent (75%) of the fee as specified in Section 5.1.1.1. 5.1.1.4The ARCHITECrS responsibility to provide Basic Services for the Construction Phase under this Agreement commences with the award of the Contract for Construction and terminates sixty (60) days after a) the actual date of Substantial Completion. Services provided after this date shall be considered Additional Services with the compensation due in accordance with Subparagraph 5.1.2 of this Agreement and shall require OWNER'S written authorization. 5.1.2 For Additional Services. OWNER shall pay ARCHITECT for Additional Services rendered under Section 2 as follows: On an hourly basis, using Standard Office Billing Rates and Categories identified in paragraph 5.5 of this Agreement, or as mutually agreed between 5-1 . e OWNER and ARCHITECT prior to the commencement of any such services. 5.1.2.1 Resident Project Services. For Services of ARCHITECrs Resident Project Representative (and assistants) furnished under paragraph 1.6.2.1., compensation shall be computed as follows: On an hourly basis, using Standard Office Billing Rates and Categories identified in paragraph 5.5 of this Agreement, or as mutually agreed between OWNER and ARCHITECT prior to the commencement of any such services. 5.1.2.2Professional Associates and Consultants. For services and Reimbursable Expenses of independent professional associates and consultants employed by ARCHITECT to render Additional Services pursuant to paragraph 2.1 or 2.2, the amount billed to ARCHITECT therefor times a factor of 1.10. 5.1.3 For Reimbursable Expenses. In addition to payments provided for in paragraphs 5.1.1 and 5.1.2, OWNER shall pay ARCHITECT the actual costs of all Reimbursable Expenses incurred in connection with all Basic and Additional Services. 5.1.4 The term "Reimbursable Expenses" has the meaning assigned in paragraph 5.4. 5.2 Times of Payments. 5.2.1 ARCHITECT shall submit monthly statement for Basic and Additional Services rendered and for Reimbursable Expenses incurred. The statements will be based upon ARCHITECTs estimate of the proportion of the total services actually completed at the time of billing. OWNER shall make prompt monthly payments in response to ARCHITECrs monthly statements. 5.3 Other Provisions Concerning Payments. 5.3.1 Invoices for basic and additional services shall be mailed on or before the first (1st) of the month and shall be payable on or before the fifteenth (15th) of the month. 5.4. Reimbursable Expenses are in addition to compensation for Basic and Additional Services and include expenses incurred by the ARCHITECT and ARCHITECT's employees and consultants in the interest of the Project, as identified in the following clauses. 5.4.1 Expenses in connection with authorized out-of-town travel; long-distance communications; and fees paid for securing approval of authorities having jurisdiction over the Project. Expenses for automobile travel during the performance of basic services shall be considered incidental. For private automobile travel beyond performance of basic services, mileage will be reimbursed at $0.31/mile. 5-2 . e 5.4.2 Expense of reproductions, postage and handling of Drawings, Specifications and other documents, photographic materials and developing expense, long-distance phone cans, and faxes. 5.4.3 If authorized in advance by the OWNER, expense of overtime work requiring higher than regular rates. 5.4.4 Expense of renderings, models and mock-ups requested by the OWNER. 5.4.5 Expense of additional insurance coverage or limits, including professional liability insurance, requested by the OWNER in excess of that normally carried by the ARCHITECT and ARCHITECrs consultants. 5.5 The following table of Standard Office Billing Rates shall be in effect where applicable under paragraph 5.1.2 and 5.1.2.1 of this Agreement: Principals Project Manager Interior Designers Project Architects Professional Staff Seaetarial Staff $100Jhr $100/hr $80/hr $65/hr $65/hr $25/hr If requested by OWNER, the ARCHITECT will submit a list of employees, their appropriate title and billing rates prior to authorization of services that will be compensated by the Standard Office Billing Rates in paragraph 5.5. 5-3 e e SECTION 6 - CONSTRUCTION COST AND OPINIONS OF COST 6.1 Construdion Cost The construction cost of the entire Pr()ject (herein referred to as "Construdion Cost") means the total cost to OWNER of those portions of the entire Project designed and specified by ARCHITECT, but it will not include ARCHITECrs compensation and expenses, the cost of land, rights-<>f-way, or compensation for or damages to properties, nor will it include OWNER's legal, accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Projed or the cost of other services to be provided by others to OWNER pursuant to paragraphs 3.7 through 3.11, inclusive. (Construction Cost is one of the items comprising Total Project Costs which is defined in paragraph 1.2.4.) 6.2 Opinions of Cost 6.2.1 Since the ARCHITECT has no control over the cost of labor, materials, equipment or services furnished by others, or over the Contractor(s)' methods of determining prices, or over competitive bidding or market conditions, ARCHITECrs best judgment as an experienced and qualified professional, familiar with the construction industry; but ARCHITECT cannot and does not guarantee that proposals, bids or actual Total Project or Construction Costs will not vary from opinions of probable cost prepared by ARCHITECT. If prior to the Bidding or Negotiating Phase OWNER wishes greater assurance as to Total Project or Construction Costs, OWNER shall employ an independent cost estimator as provided in paragraph 3.9. 6.2.2 If a Construction Cost limit is established by written agreement between OWNER and ARCHITECT and specifically set forth in this Agreement as a condition thereto, the following will apply: 6.2.2.1 The acceptance by OWNER at any time during the Basic Services of a revised opinion of probable Total Project or Construdion Costs in excess of the then established cost limit will constitute a corresponding revision in the Construdion Cost limit to the extent indicated in such revised opinion. 6.2.2.2Any Construdion Cost limit so established will include a contingency of five percent (5%) unless another amount is agreed upon in writing. 6.2.2.3ARCHITECT will be permitted to determine what types of materials, equipment and component systems are to be included in the Drawings and Specifications and to make reasonable adjustments in the general scope, extent and character of the Projed to bring it within the cost limit. 6.2.2.41f the Bidding or Negotiating Phase has not commenced within six months after completion of the Final Design Phase, the established Construction Cost limit will not be binding on ARCHITECT, and OWNER shall consent to an adjustment in such cost limit 6-1 e e commensurate with any applicable change in the general level of prices in the construction industry between the date of completion of the Final Design Phase and the date on which proposals or bids are sought. . 6.2.2.51f the lowest bona fide proposal or bid exceeds the established Construction Cost limit, OWNER shall (1) give written approval to inaease such cost limit, (2) authorize negotiating or rebidding the Project within sixty (60) days, or (3) cooperate in revising the Project's general scope, extent or character to the extent consistent with the Project's requirements and with sound engineering/architectural pradices. In the case of (3), ARCHITECT shall modify the Contract Documents as necessary to bring the Construction Cost within the cost limit. No compensation will be made for services in making such modifications per oaragraph 5.1.1.2. The providing of such service will be the limit of ARCHITECrs responsibility in this regard and, having done so, ARCHITECT shall be entitled to payment for services in accordance with this Agreement and will not otherwise be liable for damages attributable to the lowest bona fide proposal or bid exceeding the established Construction Cost. 6-2 e e SECTION 7 - GENERAL CONSIDERATION 7.1 Termination. This Agreement may be terminated by either party upon thirty (30) days prior written notice to the other party in the event of substantial failure by the other party to fulfill its obligations under this Agreement through no fault of the terminating party. 7.2 Reuse of Documents. All documents including Drawings and Specifications prepared or furnished by ARCHITECT (and ARCHITECrs independent professional associates and consultants) pursuant to this Agreement are instruments of service in respect of the Project. The ownership and property interest therein shall be granted to the OWNER when the Project is completed. ARCHITECT shall supply a set of reproducible record drawings for the OWNER in accordance with Section 1.3.6. OWNER may make and retain copies for information and reference in connection with the use and occupancy of the Project by OWNER and others; however, such documents are not intended or represented to be suitable for reuse by OWNER or others on extensions of the Projed or on any other project. Any reuse by OWNER without written verification or adaptation by ARCHITECT for the specific purpose intended will be at OWNER's sole risk and without liability or legal exposure to ARCHITECT, or to ARCHITECrs independent professional associates or consultants, and OWNER shall indemnify and hold harmless ARCHITECT and ARCHITECrs independent professional associates and consultants from all claims, damages, losses and expenses including attorneys' fees arising out of or resulting therefrom. Any such verification or adaptation will entitle ARCHITECT to further compensation at rates to be agreed upon by OWNER and ARCHITECT. 7.3 Insurance During term of this agreement, ARCHITECT shall maintain levels of insurance as desaibed in Exhibit D. 7.3.1 ARCHITECT shall procure and maintain insurance for protection from claims under worker's compensation acts, claims for damages because of bodily injury, sickness or disease or death of any and all employees or of any person other than such employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom. 7.4 Controlling Law This Agreement is to be governed by the law of the principal place of business of OWNER. 7.5 Successors and Assigns 7-1 . e 7.5.1 OWNER and ARCHITECT each is hereby bound and the partners, successors, executors, administrators and legal representatives of OWNER and ARCHITECT (and to the extent permitted by paragraph 7.5.2 the assigns of OWNER and ARCHITECT) are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants, agreements and obligations of this Agreement. 7.5.2 Neither OWNER nor ARCHITECT shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other, except to the extent that any assignment, subletting or transfer is mandated by law or the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent ARCHITECT from employing such independent professional associates and consultants, as ARCHITECT may deem appropriate to assist in the performance of basic services hereunder. 7.5.3 Nothing under this agreement shall be construed to give any rights or benefits in this Agreement to anyone other than OWNER and ARCHITECT, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of OWNER and ARCHITECT and not for the benefit of any other party. 7.6 Dispute Resolution The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this agreement promptly by negotiation between senior executives of the parties who have authority to settle the controversy. The disputing party shall give the other party written notice of the dispute. Within ten days after receipt of said notice, the receiving party shall submit to the other a written response. The notice and response shall include (a) a statement of each party's position and a summary of the evidence and arguments supporting its position, and (b) the name and title of the executive who will represent that party. The executive shall meet at a mutually acceptable time and place within twenty days of the date of the disputing party's notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. ff the controversy or claim has not been resolved within thirty days of the meeting of the senior executives, the parties shall endeavor to settle the dispute by mediation under the Center for Public Resources Model Procedure for Mediation of Business Disputes or pursue amicable termination. If the matter has not been resolved pursuant to the aforesaid mediation procedure within sixty days of the commencement of such procedure, (which period may be extended by mutual agreement), or if either party will not participate in such procedure, the parties shall pursue amicable termination. 7-2 . e SECTION 8 - SPECIAL PROVISIONS. EXHIBITS AND SCHEDULES 8.1 This Agreement is subject to the following special provisions. 8.2 The following Exhibits are attached to and made a part of this Agreement: 8.2.1 Exhibit A "Further Desaiptions of Basic Services and Related Matters" consisting of 3 pages. 8.2.2 Exhibit B "Duties, Responsibilities and Limitations of Authority of Resident Project Representative" consists of 5 pages. 8.2.3 Exhibit C "Projed Organizational Chart and Communication" consists of 1 page. 8.2.4 Exhibit D "Insurance" consists of 1 page. 8.3 This Agreement (consisting of 36 pages) together with the Exhibits and schedules identified above constitutes the entire agreement between OWNER and ARCHITECT and supersedes all prior written or oral understandings. This Agreement and said Exhibits and schedules may only be amended, supplemented, modified or cancelled by a duly executed written instrument. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement as of the day and year first above written. OWNER: CllY OF LA PORTE, TEXAS G<~r ~ City Manager ARCHITECT: Robert W. McKinney AlA 1 ~J ATTEST ATTEST ~~ ct t1A1UA City Secretary (SEAL) AP~ AS TO FORM; ~fl0. ~---? City Attorney '\ 8-1 . e EXHIBIT A FURTHER DESCRIPTION OF ARCHITECT BASIC SERVICES AND RELATED MAnERS EXHIBIT A TO AGREEMENT BETWEEN OWNER AND ARCHITECT FOR PROFESSIONAL SERVICES, dated April 26, 1999 1. This is an exhibit attached to, made a part of and incorporated by reference into the Agreement made on April 26, 1999, between the City of La Porte (OWNER) and Robert W. McKinney AlA (ARCHITECT) providing for professional services. The Basic Services of ARCHITECT as desaibed in Section 1 of the Agreement are amended or supplemented as indicated below and the time periods for the performance of certain services as indicated in Section 4 of the Agreement are stipulated as indicated below. 2. During the Schematic Design Phase ARCHITECT shall: a. Prepare drawing backgrounds and consolidate city building archive information. b. Provide document sets to OWNER as outlined in paragraph 1.2.4. c. Attend 2 meeting(s) with City staff to discuss progress and direction of the work. After the meeting ARCHITECT shall circulate for approval a set of minutes that outline the key topics discussed and any decisions, directions, etc. agreed upon by OWNER and ARCHITECT. The Schematic Design Phase will be completed and documents submitted within 45 days following written authorization from OWNER to ARCHITECT to proceed with that phase of services. 3. During the Design Development Phase ARCHITECT shall: a. Provide document sets to OWNER as outlined in paragraph 1.3.5. b. Attend L meeting(s) with City staff to discuss progress and direction of the work. After each meeting ARCHITECT shall circulate for approval a set of minutes that outline the key topics discussed and any decisions, directions, etc. agreed upon by OWNER and ARCHITECT. c. The Architect will be responsible for filing applications for permits with or obtaining approvals of such governmental authorities as have jurisdiction to approve the design of the project. A-1 . e The Design Development Phase Services will be completed and Contract Documents and ARCHITECrs opinion of costs submitted within 75 days following written authorization from OWNER to ARCHITECT to proceed with that phase of services. 4. During the Construction Documents Phase ARCHITECT shall: Prepare construction documents ready for bidding, including the following tasks: a. Construction drawings will be prepared at appropriate scale and include: Cover Sheet/Area Maps Location Plans/Sheet Indicators Final Site Plan Mechanical Plans and Elevations Final Electrical and Instrumentation Detail Sheets b. Concurrent with the development of design drawings, the ARCHITECT will develop contract documents and specifications. Final specifications will be presented to OWNER for approval. c. Attend ~ meeting(s) with City staff to discuss project and direction of the work. After each meeting ARCHITECT shall circulate for approval a set of minutes that outline the key topics discussed and any decisions, directions, etc. agreed upon by OWNER and ARCHITECT. d. Make formal submittal of Drawings, Specifications and Contract Documents for the OWNER's review at the following completion stages: Interim Pre-Final Final - 50 % of Detailed Design provide 2 set. - 90 % of Detailed Design provide 3 sets. - 100% of Detailed Design provide 5 sets. e. The ARCHITECT will develop a final "Total Probable cost" estimate. f. Provide document sets to OWNER as outlined in Paragraph 1.4.5. The Construction Document Phase Services will be completed and the Report submitted within 135 calendar days following written authorization from OWNER to ARCHITECT to proceed with that phase of services. 5. During the Bidding or Negotiating Phase ARCHITECT shall: A-2 . . a. Assist OWNER in conducting the prebid conferences and prequalification of bidders as required by City of La Porte Ordinance No. 1476-A Ordinance 1476-A requires all Contractors desiring to bid on construction projects having an estimated construction cost of greater than $300,000, must pre-qualify by filing a satisfactory Contractor's Statement. The Contractor's Statement requires the filing of both a Financial Statement and an Equipment and Experience Statement. The ARCHITECT shall review the Equipment and Experience Statements submitted by the Contractor, check references and prepare a written report and recommendation based on their findings. The ARCHITECT shall not be responsible for evaluating the financial statement submitted by Contractors. The Bidding or Negotiating Phase Services will be completed per terms of paragraph 4.6. 6. During the Construction Phase ARCHITECT shall: a. During the Construction Phase, the ARCHITECT shall make visits to the site at intervals appropriate to the various stages of construction. After contractor has submitted construction schedules, the OWNER and ARCHITECT will mutually agree on key stages of construction that will warrant and require visits by ARCHITECT. However, the total visits to site by the ARCHITECT shall average 1 per two weeks over the term of construction. The Construction Phase Services will be completed per terms of paragraph 4.7. A-3 . . EXHIBIT B A LlSllNG OF THE DUllES, RESPONSIBIUllES AND LlMITAllONS OF AUTHORllY OF THE RESIDENT PROJECT REPRESENTAllVE EXHIBIT B TO AGREEMENT BElWEEN OWNER AND ARCHITECT FOR PROFESSIONAL SERVICES, dated April 26, 1999 This is an Exhibit attached to, made a part of and incorporated by reference with the Agreement made on April 26, 1999, between The City of La Porte, Texas (OWNER) and Robert W. McKinney AlA (ARCHITECT) providing for professional services. ARCHITECT or OWNER may furnish a Resident Project Representative (RPR), assistants and other field staff to assist ARCHITECT in observing performance of the work of Contractor. Through more extensive on-site observations of the work in progress and field checks of materials and equipment by the RPR and assistants, ARCHITECT shall endeavor to provide further protection for OWNER against defects and deficiencies in the work of CONTRACTOR; but, the furnishing of such services will not make ARCHITECT responsible for or give ARCHITECT control over construction means, methods, techniques, sequences or procedures or for safety precautions or programs, or responsibility for CONTRACTOR's failure to perform the Work in accordance with the Contract Documents and in particular the specific limitations set forth in paragraph 1.6 of the Agreement are applicable. The duties and responsibilities of the RPR are limited to those of ARCHITECT in ARCHITECrs agreement with the OWNER and in the construction Contract Documents, and are further limited and described as follows: A General RPR is ARCHITECrs agent at the site, will act as directed by and under the supervision of ARCHITECT, and will confer with ARCHITECT regarding RPR's actions. RPR's dealings in matters pertaining to the on-site work shall in general be with ARCHITECT and CONTRACTOR keeping OWNER advised as necessary. RPR's dealings with subcontractors shall only be through or with the full knowledge and approval of CONTRACTOR. RPR shall generally communicate with OWNER with the knowledge of and under the direction of ARCHITECT. B. Duties and Responsibilities of RPR 1. Schedules: Review the progress schedule, schedule of Shop Drawing submittals and schedule of values prepared by CONTRACTOR and consult with ARCHITECT concerning acceptability. 2. Conferences and Meetings: B-1 . e Attend meetings with CONTRACTOR, such as preconstruction conferences, progress meetings, job conferences and other project- related meetings, and prepare and circulate copies of minutes thereof. 3. Liaison: a. Serve as ARCHITECTs liaison with CONTRACTOR, working principally through CONTRACTOR's superintendent and assist in understanding the intent of the Contract Documents; and assist ARCHITECT in serving as OWNER's liaison with CONTRACTOR when CONTRACTOR's operations affect OWNER's on-site operations. b. Assist in obtaining from OWNER additional details or information, when required for proper execution of the Work. 4. Shop Drawings and Samples: a. Record date of receipt of Shop Drawings and samples. b. Receive samples that are furnished at the site by CONTRACTOR, and notify ARCHITECT of availability of samples for examination. c. Advise ARCHITECT and CONTRACTOR of the commencement of any Work requiring a Shop Drawing or sample if the submittal has not been approved by ARCHITECT. 5. Review of Work, Rejection of Defective Work, Inspections and Tests: a. Conduct on-site observations of the Work in progress to assist ARCHITECT in determining if the Work is in general proceeding in accordance with the Contract Documents. b. Report to ARCHITECT whenever RPR believes that any Work is unsatisfactory, faulty or defective or does not conform to the Contract Documents, or has been damaged, or does not need the requirements of any inspection, test or approval required to be made; and advise ARCHITECT of Work the RPR believes should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection or approval. c. Verify that tests, equipment and systems startups and operating and maintenance training are conduded in the presence of appropriate personnel, and that CONTRACTOR maintains adequate records thereof; and observe, record and report to ARCHITECT appropriate details relative to the test procedures and startups. B-2 . e d. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project, record the results of these inspections and report to ARCHITECT. 6. Interpretation of Contract Documents: Report to ARCHITECT when clarifications and interpretations of the Contract Documents are needed and transmit to CONTRACTOR clarifications and interpretations as issued by ARCHITECT. 7. Modifications: Consider and evaluate CONTRACTOR's suggestions for modifications in Drawings or Specifications and report with RPR's recommendations to ARCHITECT. Transmit to CONTRACTOR decisions as issued by ARCHITECT. 8. Records: a. Maintain at the job site orderly files for correspondence, report of job conferences, Shop Drawings and samples, reproductions of original Contract Documents including all Work Directive Changes, Addenda, Change Orders, Field Orders, additional Drawings issued subsequent to the execution of the Contract, ARCHITECrs clarifications and interpretations of the Contract Documents, progress reports, and other Project related documents. b. Keep a diary or log book, recording CONTRACTOR hours on the job site, weather conditions, data relative to questions of Work Directive, Change Orders or changed conditions, list of job site visitors, daily activities, decisions, observations in general, and specific observations in more detail as in the case of observing test procedures; and send copies to ARCHITECT. c. Record names, addresses and telephone numbers of all CONTRACTORS, subcontractors and major suppliers of materials and equipment. 9. Reports: a. Furnish ARCHITECT periodic reports as required of progress schedule and schedule of Shop Drawing and sample submittals. b. Consult with ARCHITECT in advance of scheduled major tests, inspections or start of important phases of the Work. c. Draft proposed Change Orders and Work Directive Changes, obtaining backup material from CONTRACTOR and B-3 . e recommend to ARCHITECT Change Orders, Work Directive Changes, and Field Orders. d. Report immediately to ARCHITECT and OWNER upon the occurrence of any accident. 10. Payment Requests: Review applications for payment with CONTRACTOR for compliance with the established procedure for their submission and forward with recommendations to ARCHITECT, noting particularly the relationship of the payment requested to the schedule of values, Work completed, and materials and equipment delivered at the site but not incorporated in the Work. 11. Certificates, Maintenance and Operation Manuals: During the course of the Work, verify that certificates, maintenance and operation manuals and other data required to be assembled and furnished by CONTRACTOR are applicable to the items actually installed and in accordance with the Contract Documents, and have this material delivered to ARCHITECT for review and forwarding to OWNER prior to final payment for the Work. 12. Completion: a. Before ARCHITECT issues a Certificate of Substantial Completion, submit to CONTRACTOR a list of observed items requiring completion or correction. b. Conduct final inspection in the company of ARCHITECT, OWNER, and CONTRACTOR and prepare a final list of items to be completed or corrected. c. Observe that all items on final list have been completed or corrected and make recommendations to ARCHITECT concerning acceptance. C. Umitations of Authority Resident Project Representative: 1. Shall not authorize any deviation from the Contract Documents or substitution of materials or equipment, unless authorized by ARCHITECT. 2. Shall not exceed limitations of ARCHITECrs authority as set forth in the Agreement or the Contract Documents. 3. Shall not undertake any of the responsibilities of CONTRACTOR, subcontractors or CONTRACTOR's superintendent. B4 . e 4. Shall not advise on, issue directions relative to or assume control over any aspect of the means, methods, techniques, sequences or procedures of construction unless such advice or directions are specifically required by the Contract Documents. 5. Shall not advise on, issue directions regarding, or assume control over safety precautions and programs in connection with the Work. 6. Shall not accept Shop Drawing or sample submittals from anyone other then CONTRACTOR. 7. Shall not authorize OWNER to occupy the Project in whole or in part. 8. Shall not participate in specialized field or laboratory tests or inspections conducted by others except as specifically authorized by ARCHITECT. B-5 . e EXHIBIT C COMMUNICAnON EXHIBIT C TO AGREEMENT BETWEEN OWNER AND ARCHITECT FOR PROFESSIONAL SERVICES, dated April 26, 1999 All correspondence shall include City of La Porte Projed No. 99-2206. All correspondence regarding this Agreement for Professional Services and fee invoicing from ARCHITECT to OWNER shall be addressed as follows: City of La Porte Attention: John Joerns, Assistant City Manager PO Box 1115 La Porte, TX 77572-1115 Delivery Address: 604 West Fairmont Parkway La Porte, TX 77571 Deliveries related to project design and construction shall be sent to: City of La Porte Attention: Doug Kneupper, PE, Planning Director 604 West Fairmont Parkway La Porte, TX 77571 All correspondence from OWNER to ARCHITECT shall be addressed to: Robert W. McKinney AlA Attention: Robert McKinney 6575 West Loop South, Suite 300 Bellaire, Texas 77401 C-1 . e EXHIBIT D INSURANCE EXHIBIT 0 TO AGREEMENT BETWEEN OWNER AND ARCHITECT FOR PROFESSIONAL SERVICES, dated April 26, 1999 This is an exhibit attached to, made a part of and incorporated by reference into the Agreement made on April 26, 1999, between the City of La Porte (Owner) and Robert W. McKinney AlA (Architect) providing for professional services. Section 7.3 of the Agreement is amended and supplemented to include the following agreement of the parties: The limits of liability for the insurance required by paragraph 7.3 of the Agreement are as follows: By Architect: 1. Worker's Compensation Statutory 2. Employer's Liability $1,000,000 3. General Liability General Aggregate $500,000 Each Occurrence (Bodily Injury and Property Damage) $1,000,000 4. Excess Umbrella Liability General Aggregate $500,000 5. Automobile Liability $500,000 6. Professional liability Each Occurrence $250,000 Aggregate $500,000 0-1 . e REQUEST IR CITY COUNCIL AGENDA ITE' Agenda Date Requested: April 26, 1999 Requested By: J. L. sease' Department: Fire X Report _ Resolution _ Ordinance Exhibits: Invoice from Fire Apparatus Specialists, Inc. Copy of City Purchase Order SUMMARY & RECOMMENDATION Fire Department Unit 51-32, a 1994 Pumper, while at the scene of a Live Flight Landing was struck on the right front side by a citizen's vehicle. An estimate from Fire Apparatus Specialist was received and the citizen's insurance company sent a check to the City for 521,000.00. As soon as possible the Unit was to Fire Apparatus Specialist, Inc. for repairs. The cost of repairs was 519,991.80. Action Required by Council: Approve payment to Fire Apparatus Specialist, IDC. in the amount of $19,991.80. Availability of Fonds: General Fond WaterlWastewater _ Capital Improvement_General Revenue Sharing X Other Account Number: 024-7074-534-4021 Funds Available: X YES NO Approved for City Council A2enda ~ Robert T. Herrera City Manager 4.tl~q~ Date e KECEIVIIS e REPOR!' ?AGZ: 1 SHIP :"0: W:;:LL :.llL P.O. NO.: 990970 D6~: 4/19/99 VENDC~: PAUL KL=YG & ASSOCI~~2 VENDOR ~C. 170261 DEL~1~x BY SF~? vIA 4,':,!/99 F.O.E. CON:- _R.llof BY ::n-IRM TO G3A FORD RE.:CISITIONED BY CC:..2.:INS , MIL:l:i ~EL mE: :;err CO~TRACT ~c. REQ. ~C. 00000025:3 REQ. !.B.rr 4/13/9S ----------------------------------------------------------------------------- LINE QUANTITY NO. RECEIVED UOM ITEM ~O. ~VD DESCR~TION UNIT COST ----------------------------------------------------------------------------- 1.00 EA 090 020 13402.4400 CONTRAL:~~ SERVICES ~u~OMOTIVE SERt~CE MATERIALS FOR PAI~~ & BODY WORK 2 1.00 EA 090 020 6589.3500 CONT~\CTEJ SERVICES ~u~OMOTIVE SER.~CE LABOR FOR PAINT & BODY REPAIRS RECEIVEn BY: COL~INS,MICHAEL R~CEIVED DAIS: ~ :k~1 4/19/99 ~7' r I"~ICE '-~ . .. .J) ;r" -oT.. FIRE APP~TUS SPEClALSTrINC. r DBA PAUL KUNG" ASSC:JC::aIES P.O. BOX 112 SOUTH HOUSTON. TX TlSiI7 (713) 941..Q909 '.- -. - .. ....~... 10:'47 INVOIC::: WMBER: som'TO~ ". :,:""r.' 'C -:n. .........._... _.r.J. LA PORT=:. CITY OF p.. o. BOX lollS LA POR~. TX 775il 3;). - 40).1 51- . ......--.. _ J ..~~_..._~.~. .._-.-...... .H't .':_:.~~.. .~ ~1...::. ......: ~ -. JD ~~: .~. i~.~h.~~.~:; ... . Ii..:, ..... :"_1:.~:.:.:.a$iOM8rro~~?, ...."~c::.1.. ". ::t-~':1 (~-.-.~ ( : ~~~~ -:'.~I .:....~..: ~:'PAYMi:IInEBMs"i;':.~~-:~.;.'~'~~~~~' .~!J~~:~. '-i"";'_-~~ . LAPORTE r~u 1\0 ""'IV ,-" 3-! ::: = ,~' 9 9 I:NVCCE DATE: PAGE: .L ~' . ....~ -...... --... :.. . ~~.. . ..' -:'~ -.. ...... -.. ......- .... ..". ..-~. -....-..;..................-....,.-.. ~ S/-3::U j 1. 91 ?\hlc:?~t. ~t S~N' :3 ie. c: S-e:-1:' ee/ Shop . .:~:j;.. ~:.:>~/~~.:~...~...~;:~..~.!. ??:::: ~:' ~~~.:~:~~;J~~f;~~,t.~~.~4~.f 1~' t:..~~~. ~::'.~ ~.:<!HPIIJA1E~;:..,.~. .~. ?::~ :.~....:~~t~..~f...:~~:..~:: . '....'"':t:"-.....m-,.' :,'-" :o<";.,'.;"1rn:1rNUMBER,......'--.'...' 'l>f.!,_r .-,,'r .'tb.rarnuH' :....,t-t< : .... :;--, ft ... ~.~. ~.~...........~-4.~. (..,. r'.. . ".l;1'li'. .. .",. .i,A'.,.... ....":.. . 11..... , t..... ...,"~ '. ..r,".~l:I:- . .~. . ,. h. .. ~ '. . ~. ... .-.- -.....r.. .... .... .r.... ! . .r.... . .' .' ...,.--.... . p... _' ... I' ..".... . " P~AIRS TO KKE FIRE TRUCK GSOil978 REPLACE FRO~"!' BUMPER. ?~~CE STROSE ON FRONT i 3tMPER. j P..~L-7tCE FRON":" CAE PANEL. , ~OVE/ INSTALL LEFT AND : :._.::aT W'INDSE:ZLDS. RE?LACE RIGE= FRONT DOOR~ ~~~LA'CE DOO~ ~TA~S I .-- .. 1,3~ .... . j ;U?!.:.ACE RI,?E~ DOOR HINGE. l ?ELACER!03E':' DOOR POST. ! ~?AIR RIGET ?RONT ; !:\':'ERIOR ?]'.NEL. , R~.?~CE RIGH! DCIQR STEP. : E?LACE -FLOO:t K.~ TIN' CAS.' ~ R.!?AIR FLC>OR ?ANEL IN 1 c..~. REMOVE/ INSTALL I :~~~L OPE~ING MOOLD!NG. Cl:-crA..~E:4.AL.I_GN .CAB. 3n ?i:YT MATERIA~S, BODY , ... -:'E:RIALS I P.~?LACEMENT i ....." =>""5 HAZ ;:"'srr1;' . i :-;: :--"::"-J._... .....n.. - . ..__.~._-Il-' INTER OFFICE SENT TO: I( '( -:::-(, .: I ~;\!e,1 ,'~"'r'. 0 1st f ,.-_1,'\ 2nd .- ...... _ r.:1 ,I'i '0 '-' ",.... \. . -, '..:!J ., - ' . .- , - .~ ....."\, , - ~ . j' : 1 -= .: 4 1 t i , OJ ~! ~ I U i! MAR .2 9 !199 I b-...l Net 30 Jays 4/24/99 ."~::uNrr:PRJcE... " .:-~:::,'.~0Ni~:"'~:: :if .tp.~ .. .:'! j t i;;- 13,402.4': ::::.bt ot a! 5=:es Tax Total Invoice ~~ount _a '!' Payment ?=~eived -:-t'" ... ":.4,,--'-: ,::::- .~."~\~I"'.i 11'-"_ a......_. .. ... _~.... "...- '\ ~r --- . ~.~ -'" - .----- - -:&-1 ~ ;.1 13,402.44 t ~ - Continued corltihlied Continued ContinueO. Continued " . .. e '."CE' ,. " . _"l.: ~ --"!> ' . '3i-.... ,4,_ -,~ . ";~...-. ",.- - .._ JI.-I' ...' . .... FIRE APPARATUS SPEaALIST...INC. ; DBA PAUL ICUNG " \'&SOCIAlES . P.O. BOX 112 SOl11li HOUSTON. lX 7'T5& (713) 941-D!lCl9 IMGtCE NUMBER: -"".4- ....J_ . I .......-- ~ 7............ NVOICE DATE: _ 25/99 PAGE: . . . SOLO 'i'O: S::::?'TO: 32- dO).) 5J- ~p , t~&~S/- 3~. .u -' ~,~ ;' / ~ -' ... lJtc --I1t..'h~L .J ~,~ ':;-t .;;tA_~N ;;; /::: '- , LA PO"?TE, CITY OF P.O. EOX 2.115 LA peeTE, TX 77571 -...~-t"'........~ --.-.:.. ......-.........._..._ ....... ___~.;__.. .:~. .";.. .C.:~~[::~~ID.;;: ~fy:.:U.~~.._~~ :."~ ; j.;:.:~~: ~/.~laiSro,.:PO: :\-..:~.-.~. i:~;.~..h~.~:.~J( I"'; ,": .. . -. ... -.... :.=-..:::. ;~~': .{'.PA~.I!~u:mtS-~\.~:.~;'f..::.~..~.~~~:....;~ ..::~~.. LAPOR'!E qtfiJ1 ~O I Net ~J Days ~~..-;.~,":"'~~~r~ilEPrDf:;:. 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'. t .. , j' '. ~ '~ ' j, "....... e e e e A e e PRESENTATION ONLY - NO BACK UP PROVIDED e e B ~ e CITY OF LA PORTE e March 10, 1999 TO: Mayor and Council FROM: Robert T. Herre~ Ci~ Manager ()(-rl~ Creation of Development Corporation SUBJECT: As a result of the citizens approving the 1/2 cent 4B Sales Tax Election, the City finds itself in need of adopting Bylaws for the retention of a Development Corporation. For your review) I have attached a draft recommendation from staff on this particular subject. Staff would like to workshop this matter with you in April) hopefully, with a plan for adoption in late April or early May. Should you have any questions on this matter, please feel free to contact Jeff Litchfield or myself. RTH:cjb Attachments 1. Memorandum and survey chart from Jeff Litchfield. 2. Draft of Proposed Resolution. 3. Draft of Proposed Articles of Incorporation. 4. Draft oCProposed Bylaws. c John Joems Jeff Litchfield Martha Gillett e City of La Porte Interoffice Memorandum e To: Knox Askins, City Attomey From:C:l~eff Litchfield, Director of Finance/ACM Date: U~ -February 16, 1999 Subject: Draft Bylaws for City of La Porte Development Corporation As discussed with you previously, several months ago I took an informal survey of the makeup of various Section 4B Development Corporations within the State of Texas. As a result of that survey, Mr. Carl Wessels from the City of Waxahachie provided me with a copy of the Articles of Incorporation and Bylaws for their Development Corporation. I used these documents as a starting point for a draft of Bylaws for our Corporation. Attached is a copy of the results of the 16 Texas cities who responded to my survey regarding the makeup of their boards. Attached is also a copy of the Draft Bylaws. This document was created using Waxahachie's as a starting point and then customizing it so it applied to the City of La Porte. Xc: "Robert T. Herrera, City Manager John Joems, Assistant City Manager . e Section 4B Board Ciix Councilmemeber Citizen Staff Other Imal Conroe 2 4 1 7 Duncanville 7 7 Euless 4 3 7 Kerrville 1 6 7 Richland Hills 4 3 7 Rosenberg 3 3 1 1 8 Round Rock 3 4 7 Waxahachie 1 5 1 7 Allen 1 6 7 McKinney 1 6 7 Seabrook 4 3 7 Sugar Land 6 1 7 Hurst 4 3 7 Haltom City 4 3 3 10 League City 2 4 6 Wharton 2 5 7 Total 42 66 5 2 Average 2.625 4.125 0.3125 0.125 7.1875 e e PRELIMINARY DRAFT RESOLUTION NO. 99- A RESOLUTION AUTHORIZING THE CREATION OF THE CITY OF LA PORTE DEVELOPMENT CORPORATION UNDER SECTION 4B OF THE DEVELOPMENT CORPORATION ACT, ARTICLE 5190. 6, V. A. T . S. ; APPROVING THE CORPORATION' S ARTICLES OF INCORPORATION AND BYLAWS; APPOINTING THE INITIAL SEVEN MEHBERSOF THE BOARD OF DIRECTORS OF THE CORPORATION; AUTHORIZING THE CORPORATION TO ACT ON ITS BEHALF TO FURTBER THE PUBLIC PURPOSE TO UNDERTAKE THE PROJECTS AS DESCRIBED IN SECTION 4B OF ARTICLE 5190.6; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: section 1. The City Council of the City of La Porte authorizes the creation of the City of La Porte Development Corporation. Section 2. The City Council of the City of La Porte approves the Articles of Incorporation and Bylaws of the City of La Porte Development Corporation, in form attached hereto as Exhibit "A", incorporated by reference herein, and made a part hereof for all purposes. section 3. The City Council of the City of La Porte hereby appoints the following named persons, all of whom are residents of the city of La Porte, and no more than four of whom are elected city officials or city employees, to serve as directors of the corporation without compensation, but with reimbursement for actual expenses. A director shall serve at the pleasure of the City Council for a term of two years; however, the City Council may vote to remove a director at any time without having to specify cause. The number of directors constituting the initial Board of Directors of the corporation is 7, and the names and addresses of the persons who are to serve as directors are: e e Section 4. The corporation is organized under, and shall be governed by, the Development Corporation Act of 1979, Article 5190.6, Section 4B, Vernons Annotated Texas Civil Statutes, as amended (the "Act"), and may issue bonds on behalf of the Unit for the specific public purpose to undertake projects as described in Section 4B of Article 5190.6, including but not limited to projects for the promotion of amateur athletics and sports including ball parks, auditoriums, projects related to entertainment, convention, tourist, and exhibition facilities, amphitheaters, concert halls, and public parks, park facilities and events, open space improvements, learning centers, municipal buildings, museums and related stores, restaurant, concession, and automobile parking facilities, related area transportation facilities, and related roads, streets, and water and sewer facilities, recycling facilities and projects to promote new or expanded business enterprises including public safety facilities, streets and roads, drainage, and related improvements, demolition of existing structures, and general improvements that are municipally owned, development and expansion of affordable housing, as well as any other improvements or facilities that are related to any of the 2 . e above projects and any other project that the board determines will promote new or expanded business enterprises, and the maintenance and operations expenses for any of the above described projects. section 5. The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this resolution and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. Section 4. This Resolution shall be effective from and after its passage and approval. PASSED AND APPROVED this day of , 1999. CITY OF LA PORTE By: Norman L. Malone Mayor ATTEST: Martha A. Gillett City Secretary APPROVED: Knox W. Askins City Attorney 3 . e PRELIMINARY DRAFT ARTICLES OF INCORPORATION OF THE CITY OF LA PORTE DEVELOPMENT CORPORATION We, the undersigned natural persons, each of whom is of the age of eighteen (18) years or more, and a qualified elector of the City of La Porte (the "Unit"), acting as the incorporators of a corporation under the Development Corporation Act of 1979, Article 5190.6, section 4B, Vernon's Annotated Texas Civil Statutes, as amended (the "Act"), do hereby adopt the following Articles of Incorporation for such corporation: ARTICLE I The name of the corporation is "CITY OF LA PORTE DEVELOPMENT CORPORATION" . ARTICLE II The corporation is a nonprofit corporation. ARTICLE III The duration of the corporation shall be perpetual. ARTICLE IV The corporation is organized under, and shall be governed by, the Development corporation Act of 1979, Article 5190.6, Section 4B, Vernons Annotated Texas civil statutes, as amended (the "Act"), and may issue bonds on behalf of the unit for the specific public purpose to undertake projects as described in Section 4B of Article 5190.6, including but not limited to projects for the promotion of amateur athletics and sports including ball parks, auditoriums, projects related to entertainment, convention, tourist, and exhibition facilities, amphitheaters, concert halls, and public parks, park facilities and events, open space improvements, learning centers, municipal buildings, museums and related stores, restaurant, concession, and automobile parking facilities, related area transportation facilities, and related roads, streets, and water and sewer facilities, recycling facilities and projects to promote new or expanded business enterprises including public safety facilities, streets and roads, drainage, and related improvements, demolition of existing structures, and general improvements that are mun~cipally owned, development and expansion of affordable housing, as well as any other improvements or facilities that are related to any of the above projects and any other project that the board determines will promote new or expanded business enterprises, and the maintenance and operations expenses for any of the above described projects. ARTICLE V The corporation has no members and is a nonstock corporation. . e ARTICLE VI The corporation's internal affairs shall be regulated by a set of bylaws, not inconsistent with the laws of the state, which have been approved by the City Council of the Unit (the "Governing Body"), under whose auspices the corporation is created. ARTICLE VII The street address of the initial registered office of the corporation is 604 West Fairmont Parkway, La Porte, Harris County, Texas 77571, and the name of its initial registered agent at such address is Martha A. Gillett~ The mailing address of the initial registered office of the cor~ration is P.o. Box 1115, La Porte, Texas 77572-1115. ~ " CL~ S~. ARTICLE VIII The number of directors constituting the initial Board of Directors of the corporation is 7, and the names and addresses of the persons who are to serve as directors are: ARTICLE IX The name and street address of each incorporator are: . e ARTICLE X The Governing Body of the Unit has specifically authorized by Resolution the corporation to act on its behalf to further the specific public purpose as set forth in Article IV of these Articles of Incorporation, and has approved these Articles of Incorporation of the corporation. ARTICLE XI These Articles of Incorporation may at any time and from time to time be amended by the Board of Directors or by the Governing Body, subject to such restrictions and in accordance with such procedures as may be provided in the Bylaws of the corporation; so long as the Articles of Incorporation as amended contain only such provisions as are lawful under the Act. IN WITNESS WHEREOF, we have hereunto set our hands, this day of , 1999. Name: Name: Name: . . BYLAWS OF THE CITY OF LA PORTE DEVELOPMENT CORPORATION These bylaws govern the affairs of the CITY OF LA PORTE DEVELOPMENT CORPORATION (the "Corporation") a nonprofit corporation organized under Article 5190.6, Section 48, Vernon's Annotated Texas Civil Statutes, as amended (the 'Act'). ARTICLE I PURPOSES General Purposes 1.01. The Corporation acts on behalf of the City of La Porte, Texas in furtherance of the public purposes of the Act and may engage in any project authorized under Section 2(10) or Section 48 of the Act. Powers 1.02. The Corporation has all the powers both express and implied, granted to corporations governed by Sec. 48 of the Act and by the Texas Non-profit Corporation Act. ARTICLE II OFFICES Principal Office 2.01. The principal office of the Corporation in the State of Texas is located at 604 West Fairmont Parkway in La Porte; Harris County; Texas. The Corporation may provide for additional offices or change the location of any office. Registered Office and Agent 2.02. The Corporation shall comply with the requirements of the Act and maintain a registered office and registered agent in Texas. The registered office may, but need not, be identical with the Corporation's principal office in Texas. The Corporation may change the registered office and the registered agent as provided in the Act. 1 . . ARTICLE III BOARD OF DIRECTORS Management of the Corporation 3.01. The affairs of the Corporation shall be managed by the Board of Directors. Number, Qualifications and Tenure of Directors 3.02. The Board of Directors shall consist of seven members appointed by the City Council of the City of La Porte, Texas, for staggered two year terms of office. Not less than three (3) directors shall be persons who are not employees, officers or members of the governing body of the City of La Porte, Texas. Each director must reside within the City of La Porte, Texas. The Board of Directors shall appoint a President and Vice-President by of each year. The President shall be the presiding officer for meetings and the Vice-President shall act in the President's absence. Vacancies 3.03. A vacancy occurring upon the Board of Directors shall be filled for the unexpired term by appointment by the City Council of the City of La Porte, Texas. Annual Meeting 3.04. The annual meeting of the Board of Directors shall be held during the month of of each year. The Board of Directors shall. designate the time and location of the annual meeting. Regular Meetings 3.05. The Board of Directors may provide for regular meetings by resolution stating the time and place of such meetings. The meeting shall be held within the City of La Porte, Texas, at a location designated by the board of Directors. Special Meetings 3.06. Special meetings of the Board of Directors may be held at the request of the President or any three Directors. A person or persons calling the meeting shall fIX the time and location of the meeting. The person or persons calling a special meeting shall notify the secretary of the Corporation of the information required to be included in the notice of the meeting. In addition to the posting of a meeting notice in accordance with these bylaws, a copy of each such meeting notice shall be delivered to each director not less than seventy-two hours before the time of the meeting. A meeting notice shall be deemed delivered to any director when deposited in the United States mail addressed to the director at his or her address as it appears on the records of the Corporation. Such additional notice may be waived in writing by a director at any time either 2 . e before or after the time of the meeting and such additional notice shall be deemed waived by attendance. Notice of Meetings 3.07. The Corporation shall be considered a "govemmental body" within the meaning of Texas Government Code, Sec. 551.001, and notice of each meeting shall be given in accordance with the provisions of Texas Govemment Code, Chapter 551 (The Texas Open Meetings Act). Quorum 3.08. Four (4) Directors shall constitute a quorum for the transaction of business at any meeting of the Board of Directors. The presence of a director may not be established by proxy. No business shall be conducted, nor shall any action be taken by the Board of Directors in the absence of a quorum. Duties of Directors 3.09. Directors shall exercise ordinary business judgment in managing the affairs of the Corporation. In acting in their official capacity as directors of the Corporation, directors shall act in good faith and take actions they reasonably believe to be in the best interests of the Corporation and which are not unlawful and shall refrain from actions not in the best interest of the Corporation or which would be unlawful. A director shall not be liable if, in the exercise of ordinary care, the director acts in good faith relying on written financial and legal statements provided by an accountant or attomey retained by the Corporation. Duties of President 3.10. The president shall be the chief executive officer of the Corporation. The president shall supervise and control all of the business and affairs of the Corporation. When the execution of any contract or instrument shall have been authorized by the Board of Directors, the president shall execute same except where such power is expreSSly delegated to another officer of the Corporation. The president shall perform other duties prescribed by the Board of Directors and all duties incident to the office of president. Actions of Board of Directors 3.11. The Board of Directors shall try to act by consensus. However, the vote of a majority of directors present at a meeting at which a quorum is present shall be sufficient to constitute the act of the Board of Directors. Proxy Voting Prohibited 3.12. A director may not vote by proxy. 3 e e Removal of Directors 3.13. The Board of Directors and each member thereof serves at the pleasure of the City Council of the City of La Porte, Texas, which may remove any director at any time, either with or without Cause. Committees 3.14. The Board of Directors may by resolution establish one or more special or standing committees. Such committees shall have the powers, duties and responsibilities established by the Board. The committees shall keep regular minutes of their meetings and report the same to the Board of Directors when required. Compensa~ion of Directors 3.15. The directors shall not receive any salary or compensation for their services. Directors may be reimbursed for their actual expenses incurred in the performance of their duties. Travel expenses shall be reimbursed under the City's travel policy. Attendance 3.16. Regular attendance at the Board meetings is required of all directors. Three (3) consecutive, unexcused absences from meetings of the Board shall cause the position to be considered vacant. Four (4) unexcused absences in a twelve (12) month period shall also cause the position to be considered vacant. Ex-Officio Members 3.17. The City Council may appoint Ex-Officio members to the Board of Directors as it deems appropriate., These representatives shall have the right to take part in any discussion of open meetings, bl,Jt shall not have the power to vote in the meetings. Ex-Officio members shall serve a term of one calendar year. ARTICLE IV OFFICERS Officer Positions 4.01. The officers of the Corporation shall be a secretary who shall be the City Secretary or Assistant City Secretary of the City of La Porte, Texas and a treasurer who shall be the Finance Director of the City of La Porte, Texas. At the option of the City Council these officers may also serVe simultaneously as voting Directors to the Board. 4 e e Tenns of Officers 4.02. The officers of the Corporation shall serve as long as they are employed by the City of La Porte, Texas Removal of Officers 4.03. Any officer may be removed by the City Council of the City of La Porte, Texas at any time, with or without good cause. Vacancies 4.04. A vacancy in any office may be filled by the City Council of the City of La Porte, Texas for the unexpired portion of the officer's term. Secretary 4.05. The Secretary shall: . Give all notices as provided in the bylaws or as required by law. . Take minutes of the meetings of the Board of Directors and keep the minutes as part of the corporate records. . Maintain custody of the corporate records, authenticate corporate documents and affix the seal of the Corporation as required. . Keep a register of the mailing address of each director and officer of the Corporation. . Perform duties as assigned by the president or Board of Directors. . Perform all duties incident to the office of secretary. Treasurer 4.06. The treasurer shall: . Have charge and custody of and be responsible for all funds and securities of the Corporation. . Receive and give receipts for moneys due and payable to the Corporation from any source. . Deposit all moneys in the name of the Corporation in banks, trust companies, or other depositories as provided by these bylaws. . Write checks and disburse funds to discharge obligations of the Corporation. . Maintain the financial books and records of the Corporation. . Prepare financial reports at least annually. . Perform other duties as assigned by the Board of Directors. . Prepare an annual budget. . Perform all duties incident to the office of treasurer. 5 e e . Compensation of Officers 4.07. The officers shall not receive any salary or compensation for their services. Officers may be reimbursed for their actual expenses incurred in the performance of their duties. Travel expenses shall be reimbursed under the City's travel policy. ARTICLE V TRANSACTIONS OF THE CORPORATION Contracts 5.01. The Board of Directors may authorize any officer or agent of the Corporation to enter into a contract or execute and deliver any instrument in the name of or on behalf of the Corporation. This authority may be limited to a specific contract or instrument or it may extend to any number and type of possible contracts and instruments. Depository Bank 5.02. All funds of the Corporation shall be deposited with the City's depository bank. Potential Conflicts of Interest 5.03. The members of the Board of Directors are local public officials within the meaning of Texas Local Government Code Chapter 171. If a director has a substantial interest in a business entity or real property which is the subject of deliberation by the Board of Directors, the director shall file an affidavit with the secretary of the Corporation stating the nature and extent of the interest. Such affidavit shall be filed prior to any vote or decision upon the matter by the Board of Directors, and the interested director shall abstain from any vote or decision upon the matter. Council Approval 5.04. The Board of Directors shall obtain prior City Council approval of all real estate acquisitions, real estate leases for over one year and or any long-term leases; contracts, expenditures, or debts over $15,000.00; and bond issues or other debt extending beyond one year. The Board of Directors shall have the authority to enter into all other budgeted transactions without prior City Council approval. Amendments to the budget must be approved by the City Council. 6 . . ARTICLE VI BOOKS AND RECORDS Required Books and Records; 6.01. The Corporation shall maintain: . Correct and complete books and records of account. . The Corporation's books and records shall include a file endorsed copy of all documents filed with the Texas Secretary of State relating to the Corporation, including, but not limited to, the Articles of Incorporation, any articles of amendment, restated articles, articles of merger, articles of consolidation, and statement of change of registered office or agent. . A copy of the bylaws and any amended versions or amendments to the bylaws. . Minutes of the proceedings of the Board of Directors. . A list of names and addresses of the directors and officers of the Corporation. . A financial statement showing the assets, liabilities, and net worth of the Corporation at the end of the three most recent fiscal years. . A financial statement showing the income and expenses of the Corporation for the three most recent fiscal years. . All rulings, letters, and other documents relating to the Corporation's federal, state and local tax status. . The Corporation's federal, state and local information or income tax retums for each of the Corporation's three most recent tax years. . Annual budget which is approved by City Council. Records Open to Public 6.02. The Corporation shall be considered a "governmental body" within the meaning of the Texas Govemment Code, Sec. 552.003 and all records of the Corporation shall be made available to the publiC for inspection or reproduction in accordance with the requirements of the Texas Government Code, Chapter 552 (The Texas open Records Act). Audits 6.03. The Corporation's books are required to be audited by the City's independent auditor on an annual basis. Cost of the audit will be paid by the Corporation. ARTICLE VII PERSONNEL 7.01. Any full-time or part-time personnel positions that the Corporation may establish will be subject to the personnel policies of the City. The City Manager has full authority in personnel matters. 7 . . ARTICLE VIII AMENDMENTS TO BYLAWS 8.01. The bylaws may be altered, amended, or repealed by the affirmative vote of four or more members of the Board of Directors with the consent of the City Council of the City of La Porte, Texas or shall be altered, amended or repealed at the direction of the City Council of the City of La Porte. ARTICLE IX MISCELLANEOUS PROVISIONS Legal Authorities Governing Construction of Bylaws 9.01. The bylaws shall be construed in accordance with the laws of the State of Texas. All references in the bylaws to statutes, regulations, or other sources of legal authority shall refer to the authorities cited, or their successors, as they may be amended from time to time. It is expressly provided that the provisions of the Development Corporation Act of 1979 applicable to corporations govemed under Section 4B of that Act are incorporated within these bylaws by reference. In the event of any conflict between the applicable provisions of such Act and these bylaws, then the applicable provisions of such Act shall control. Legal Construction 9.02. If any bylaw provision is held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability shall not affect any other provision and the bylaws shall be construed as if the invalid, illegal, or unenforceable provision had not been included in the bylaws. Headings 9.03. The headings used in the bylaws are used for convenience and shall not be considered in construing the terms of the bylaws. Seal 9.04. The Board of Directors may provide for a corporate seal. Such seal would consist of two concentric circles containing the words "City of La Porte Development Corporation", and "Texas" in one circle and the "incorporated" together with the date of incorporation of the Corporation in the other circle. Parties Bound 9.05. The bylaws shall be binding upon and inure to the benefit of the directors, officers and agents of the Corporation and their respective heirs, executors, administrators, legal representatives, successors and assigns except as otherwise provided in the bylaws. 8 e . Fiscal Year 9.06. The fiscal year of the Corporation shall begin on the first day of October of each year and end on the last day of September of the following year. Effective Date 9.07. These bylaws, and any subsequent amendments hereto, shall be effective of and from the date upon which approval has been given both by the Board of Directors and the City Council of the City of La Porte, Texas. Adopted this ,1999 President of the Board CERTIFICATE OF SECRETARY I certify that I am the duly elected and acting secretary of the CITY OF LA PORTE DEVELOPMENT CORPORATION, and the foregoing Bylaws constitute the Bylaws of the Corporation. These Bylaws were duly adopted at a meeting of the Board of Directors held on the day of , 1999, and approved and ratified by the City Council of the City of La Porte, Texas, at a meeting held on the _ day of ,1999. Signed this _ day of ,1999. Secretary of the Corporation 9 e MEETING HANDOUTS e ... Sales Tax for Economic OeYelopment e If the proposed change in the tax rate is approved by a majority of the qualified voters of the city voting at an election on the issue, the city may levy the approved tax. The city secretary must, by certified or registered mail, send the State Comptroller a certified copy of the resolution or ordinance and a map of the city clearly showing the city's boundaries. After receiving the documents, the Comptroller has 30 days to notify the city secretary that the Comptroller's Office will administer the tax. If the election fails, the city must wait one full year before bringing the issue to the voters again. 107 However, the Election Code allows the city to hold a subsequent election on the corresponding uniform election date that occurs approximately one year later, even if the date falls several days before a full year has elapsed. lOB Effective Date of Section 48 Tax The change in the sales tax I:8~e becomes effective one full calendar quarter after notice of the election has been provided to the State Comptroller. The new tax rate applies to purchases on or after the first day of that calendar quarter as provided under Section 321.102(a) of the Tax Code. January Section: Send notice to the Comptroller no later than the last week in March. On July 1, the new tax rate will take effe~t. The city will receive its first pavment in September. "* May Election: Send notice to the Comptroller no later than the last week in June. On October 1, the new tax rate will take effect. The city will receive its first payment in December. August Section: Send notice to the Comptroller no later than the last week in September. On January 1, the new tax rate will take effect. The city will receive its first payment in March. NO\lember Election: Send notice to the Comptroller no later than the last week in December. On April 1, the new tax rate will take effect. The city will receive its first payment in June. If the city adopts a Section 4B sales tax, and at the same election, adopts a sales tax for property tax relief, both taxes will not take effect until the following October 1 (assuming at least a complete calendar quarter has passed since the election). 109 If a complete calendar quarter had not passed since' the election, the tax would not take effect until the following October 1. Allocation of the Sales Tax Proceeds by the Comptroller Once the sales tax is effective, the Comptroller remits the sales tax proceeds from the increase in the rate to the municipality with its other local sales tax proceeds. The Municipal Sales and Use Tax Act (Chapter 321 of the Tax Code) governs the imposition, computation, administration, and use of the tax, except where it is inconsistent with the Development Corporation Act.IIO Oftice of the Altomey General - Page 41 . The Sales Tax for Economic DeveJopm' The city, upon receiving its local sales tax allotment from the Comptroller, must remit any sales tax for economic develQ,pment to the industrial develQpment co~oration re~nsible for administering the tax.111 However, the proceeds of a sales tax for property tax relief, if adopted, would remain with the city. 112 ~ Creation of a Section 48 Development Corporation A development corporation may be initiated either by the city or by a group of citizens. 1 13 In either case, the development corporation must be created by a group of at least three persons who are at least 18 years old and qualified voters of the city. The group must file a written application with the city requesting approval of an industrial development corporation. The city may not charge a fee for consideration of the application. If the city determines that the corporation should be created, the cilt. ~ust approve the corporation's articles of incorcoration by ordinance or resolution. The articles of incorporation must indicate what purposes the corporation can promote on the city's behalf. The articles of incorporation must also state that the corporation is to be governed by Section 4B of the Act. 114 If a city collects a sales and use tax under both Section 4A and Section 4B, the city must create separate corporations and boards of directors for Section 4A and Section 4B. However, members of the board of directors of one corporation may serve on the board of directors of the other corporation. A city may not create more than one corporation to implement the Section 4A tax or more than one corporation to implement a Section 4B tax. lIS The articles of incorporation for all development corporations must contain the items required under Section 6 of the Act, and must be approved by the municipality's governing body. 116 The city, at its sole discretion, may amend the articles of incorporation at any time. 1 17 The articles of incorporation must be filed in triplicate with the Secretary of State's Office pursuant to Section 7 of the Act. Upon the issuance of the certificate of incorporation, the corporate existence of the development corporation begins. After the issuance of the certificate of incorporation, the board of directors of the corporation must hold an organizational meeting to adopt the bylaws and to elect officers. 118 The initial bylaws must also be approved by resolution of the governing body of the city. I 19 The first meeting of the board of directors of the corporation should be held pursuant to the requirements of Section 12 of the Act. There does not appear to be any authority for an entity formed under the Development Corporation Act to dissolve and turn over all its assets directly to a 4B corporation. Rather, any corporation created under the Act that wished to dissolve would be required to turn over all of its assets either to the city that created it120 or to a 4A corporation. 121 ames of lIIe Altomey General - Page 42 . . I. The Sales Tax for Economic Development * Directors of a Section 48 Development Corporation A Section 4B corporation is governed by a seven-member board of directors. 122 The seven directors are appointed by a majority vote of the city council at an open meeting. Unlike Section 4A corporation boards, the Act does place qualifying criteria for a person who serves as a director on the Section 4B board. Specifically, a Section 4B director is required to be a city resident. Additionally, the law limits the number of Section 4B directors who are also city officers or employees: it states that no more than four of the seven directors may also be elected city officials or city emplovees. The directors serve without comcensation, but must be ~imbursed for actual expenses.l2J A director serves at the pleasure of the city counc~1 for a term of two years; however, the city council may vote to remove a director at anv time without having to specify cause. A majority of the board (four members) constitutes a Q.Uomm. The industrial development corporation board of directors is subject to both the Open Meetings Actl24 and th~ Open Records M: 125 Additionally, the Development Corporation Act requires the board to conduct all of its meetings within the city limits.l26 At one of its first meetings, the board is required to elect a president, a secretary, and any other officers that the governing body of the City considers necessary. The corporation's registered agent must be a resident of Texas, and the corporation's registered office must be within the boundaries of the city. 127 General Powers and Duties of Section 48 Development Corporations Section 4B industrial development corporations have the following general powers and duties: I) Power to Expend Tax Proceeds. The development corporation has the power to expend the proceeds of the economic development sales tax for purposes authorized by the Development Corporation Act. All such expenditures must be made pursuant to a majority vote of the governing body of the board and pursuant to oversight by the citv.128 2) Powen of a Nonprofit Corporation. The corporation shall have and exercise all powers and rights of a nonprofit corporation under the Texas Nonprofit Corporation Act (Article 1396-1.01 et seq.), except to the extent such powers would be in conflict or inconsistent with the Development Corporation Act. 129 3) Financial Transaction Powers. The corporation shall have the power to sell, to lease, to make secured and unsecured loans, and to sue and be sued. 130 4) Status as a Nonstock Corporation. The corporation. is a nonprofit, nonmember, nonst,?ck corporation. 131 Oftice of the Attomey General - Page 43 . . I. The Sales Tax for Economic Development 5) Exemption from Federal, State and Local Taxation. Projects owned by the Section 4B corporation are exempt from local property taxation under Section 11.11 of the Tax Code, pmsuant to Article 5190.6, Section 4B(k). In terms of state taxation, Section 4B corporations pmsuant to Section 32 of Article 5190.6 are considered public charities within the tax exemption of Article VIll, Section 2 of the Texas Constitution. Upon request, the State Comptroller's Office Section has treated Section 4B development corporations as exempt from state and local sales tax and the state franchise tax.132 In order to request these exemptions, corporations submit a copy of the their articles of incorporation to the Exempt Organizations Section of the Office of the State Comptroller. If a development corporation has qualified for federal exemptions prior to applying for state exemptions, a copy of the determination letter from the Internal Revenue Service should be sent to the state comptroller's office at the time the corporation submits its articles of incorporation. However, development corporations are exempt from state and local sales and state franchise taxes regardless of their tax exempt status with the Internal Revenue Service. The articles of incorporation and any IRS deteImination letters should be submitted with a cover letter containing the development corporation's daytime phone number, charter number, and tax identification number. The Comptroller's address is: Texas State Comptroller, Exempt Organizations Section, P.O. Box 13528, Austin, TX 78711-3528. To determine whether other state or local taxes are applicable to the development corporation or its activities, individuals may wish to visit with local legal counsel. For more information about tax exemptions, contact the Texas Comptroller's Office Tax Assistance at 1-800-252-5555. 6) Application of Open Meetings and Open Records Act. The corporation and its board of directors are subject to the Open Meetings Actl33 and the Open Records Act. 134 7) Limited Eminent Domain Power. The city council must approve the corporation's ~ercise of eminent domain power.13S When the corporation exercises eminent domain power, it must do so in accordance with the procedures set forth in the laws applicable to the eligible city. 8) Limited Tort Liability Protection. The corporation and its directors and employees are not liable for damages arising out of the performance of governmental functions of the corporation.136 The corporation is considered a governmental entity for purposes of the Texas Tort Claims Act. 9) Ability to Own or Operate Projects. Generally, the corporation does not have the power to own or operate any project as a business entity other than as a lessor, seller, or lender. However, the corporation does have all the powers necessary to own and operate a project as a business if the project is a military facility closed or realigned under the Defense Base Closure and Realignment Act of 1990 (10 United States Code Section 2687).137 omc:e of the Attomey General - Page 44 ~ ". '. :..;.. :or ........... .;t. ..~. ..t Sales Tax for Economic Development . Oversight of Section 48 Development Corporations * Section 21 of the Development Corporation Act provides that the city shall aoprove all programs and expenditures of the develooment comoration and shall annually review ~1'ly financial statements of the corooratiop. It further provides that at all times the city will have access to the books and records of the corporation. . Additionally, Section 23(1 1) of the Act states that the powers of the cOq)oration shall be subiect at all times to the control of the city's governing body. And finally, Section 34 of the Act Jtives the ci~ authority to alter the structure. organization. oro2I'8D1S. or activities of the development corporation ~at any time. This.authority is limited by constitutional and statutory restrictions on the impairment of existing contracts. Additionally, bond covenants may also restrict the restructuring or dissolution of an economic development corporation. Annual Reporting Requirement for 48 Corporations Section 4C of the Development Corporation Act was added during the 1997 session of the Texas Legislature.138 That section requires both Section 4A and Section 4B economic development corporations to submit an annual, one-page report to the State Comptroller's Office. The report must be submitted by February 1 of each year and must be in the form required by the Comptroller. C The report must include the followin~ 1. A statement of the corporation's primary economic development objectives. 2. A statement of the corporation's total revenues for the preceding fiscal year. 3. A statement of the corp~ration's total expenditures for the preceding fiscal year. 4. A statement of the corporation's total expenditures during the preceding fiscal year in each of the following categories: a. administration b. personnel c. marketing or promotion d. direct business incentives e. debt service f. capital costs g. affordable housing h. payments to taxing units, including school districts omce of the AIIamey General - Page 45 . . I. 1IIe Sales Tax for Economic Development 5. A list of the corporation's capital assets, including land and buildings (for example, industrial parks, recreation and sports facilities, etc.). 6. Any other information required by the Comptroller. If a corporation fails to file the required report or to include all the required information, the Comp1roller may impose an administrative penalty against the corporation of $200. However, before imposing such a penalty, the Comptroller must provide written notice to the corporation of its error in filing the report. That notice must include information on how to correct the error. Once it has received notice, the COrporation has 30 days to correct its reporting error before the Comptroller may impose the $200 penalty. The form may be submitted to the Comptroller's Office by mail or by fax at fax number (512) 475-0664. For more information on filing the required fonn, contact the Texas Comptroller's Office at 800- 531-5441, extension 3-4679. Federal Taxation of Section 4A and Section 48 Development Corporations 139 A development corporation created under Section 4A or Section 4B of the Act may qualify for exemption from federal income tax under at least three different Internal Revenue Code (the "Code") sections. The following is a summary of these Code sections, their purposes, and some of their advantages and disadvantages. Of course, a development corporation will want to consult with its accountants and legal counsel to detennine which, if any, of these exemptions apply to their operations. Federal Tax Code Section 115 Federal Tax Code Section 115 exempts income that an entity receives from the exercise of an essential governmental function which accrues to a political subdivision. Organizations similar to Section 4A and Section 4B development corporations have been determined to be exempt under this section. Additionally, the Internal Revenue Service (the "IRS") has infonnally indicated that is would grant an exemption for income of a development corporation that involves the perfonnance of a governmental function (e.g.; funding public infrastructure improvements). A development corporation does not have to apply to the IRS to be exempt under this section. A Federal Tax Code Section 115 exemption is usually relied upon when a qualifying entity does not desire a written determination letter from the IRS. Development corporations with this type of exemption may issue tax-exempt bonds for governmental purposes as specifically provided by Texas statute. Most bond counsel will not require an IRS detennination for the issuance of tax-exempt bonds. Entities described in this section also do not have to file an annual federal income tax return. Contributions to Section 115 entities are generally tax deductible. If a development corporation wants a formal written determination from the IRS that it is exempt under this Section, such a determination can be obtained by filing a private letter ruling request wi~ the IRS, Washington Office. omce of the Anomey Generai- Page 46 ; "e Sales Tax for Economic Development . Federal Tax Code Section 501 (c) (3) Federal Tax Code Section 501 (c) (3) exempts the income of corporations organized and operated e?,clusively for charitable purposes. Charitable purposes have in the past been found to include efforts by entities to lessen the burdens of government by perfonning duties previously undertaken by the government. To be exempt under this provision, the development corporation must tile a Form 1023 with the IRS requesting this exemption. This process is much less expensive than obtaining a written determination under Section 115 (discussed earlier). Most development corporations that qualify under Section 50 1 (c) (3) are not required to tile an annual federal income tax retmn, but they should obtain a determination to that effect when they tile their Form 1023 with the IRS. If the development corporation has unrelated buSiness income, it will have to tile a federal tax return and may have to pay tax on that income. An entity can obtain a Section 501 (c) (3) determination even though it also considers itself exempt under Section 115. The Section 50 I ( c) (3) exemption is usually relied upon when a written determination from the IRS is desired by the development corporation. Some bond counsel may insist that if this type of entity issues bonds, it would only be eligible to issue Section SOl (c) (3) bonds, which are more expensive to issue than governmental bonds. Contributions to this type of entity are generally tax deductible. Federal Tax Code Section 501 (c) (4) and 501 (c) (6) Federal Tax Code Section SOl (c) (4) and 501 (c) (6) exempts the income of corporations organized and operated as community development organizations and business leagues. To obtain a written determination that an organization is exempt under this provision, a F onn 1024 must be filed with the IRS. This type of exemption is not difficult to qualify for, but does not have as many advantages as the other IRS Code sections discussed earlier. The only major benefit of a Federal Tax Code Section 501 (c) (4) and 501 (c) (6) designation is that it generally allows the exemption of the income of the development corporation from federal taxation. Development corporations qualifying under these sections should not have to tile an annual federal income tax return (unless they have unrelated business income) if they receive a determination to this effect from the IRS when they file their Fonn 1024. Contributions to this type of organization are not conside!Cd deductible as charitable contributions. These organizations also cannot issue tax exempt bonds unless they also qualify under Federal Section 115. omce of the Aftorney General - Page 47