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HomeMy WebLinkAbout8083RESOLUTION NO. 8083 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND HGF ARCHITECTS INC. FOR PROFESSIONAL SERVICES ASSOCIATED WITH FIRE STATION NO.2 BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1. An Agreement dated March 24, 1997, a copy of which is attached hereto and made a part hereof, after having been approved as to form by the City Attorney, by and between Pueblo, A Municipal Corporation, and HGF Architects Inc., is hereby approved. SECTION 2. The President of the City Council is hereby authorized to execute the said Agreement on behalf of Pueblo, a Municipal Corporation, and the City Clerk shall affix the seal of the City thereto and attest the same. SECTION 3. Funds for said professional services in the amount of $20,500.00 shall be paid from Account No. 070 -1997- 095- 000 - 050 -1109. INTRODUCED March 24 3997 By Charles Jones Councilperson APPROVED Presiden f the ouncil ATTEST: City Clerk AGREEMENT FOR PROFESSIONAL ARCHITECTURAL SERVICES THIS AGREEMENT made and entered this 28th day of April, 1997 by and between the City of Pueblo, a Municipal Corporation (hereinafter "Owner ") and HGF Architects, Inc., a professional architectural firm (hereinafter "Architect ") for Architect to render certain professional architectural and related services for Owner in connection with Eagleridge Firestation City of Pueblo, Project # , hereinafter referred to as the "Project." In consideration of the mutual covenants hereinafter set forth, the parties agree as follows: SECTION 1. GENERAL 1.1 Architect shall satisfactorily perform professional architectural services for all phases of Project indicated below by mark placed in the appropriate box or boxes: ® Schematic Design Phase. ® Design Development Phase. ® Construction Documents and Bidding Phase. ® Construction Phase. Such services shall include all usual and customary professional architectural consultation and advice and the furnishing (directly or through its professional consultants) of customary and usual architectural services including any required structural, mechanical and electrical engineering services incident to its work on the Project. 1.2 In performing the professional services, Architect shall complete the work items described generally in Appendix A - Scope of Services and the items identified in Section 2 of this Agreement which are applicable to each phase for which Architect is to render professional services. 1.3 Architectural services shall be performed under the direction and supervision of an architect duly licensed in the State of Colorado. Professional engineering services shall be performed under the director and supervision of a registered Professional Engineer in good standing and duly licensed to practice in the State of Colorado. All reproductions of drawings produced under this Agreement shall be the same as at least one record set which shall be furnished to Owner and which shall be signed by and bear the seal of either the licensed Architect or such registered Professional Engineer. SECTION 2. ARCHITECT SERVICES 2.1 Schematic Design Phase If Architect is to provide professional services with respect to the Project during the Schematic Design Phase, Architect shall: (a) Consult with Owner to determine his requirements for the Project and review available data. (b) Advise Owner as to the necessity of his providing or obtaining from others data or services of the types described in paragraph 2.2(c), and assist Owner in obtaining any such services. (c) Provide special analyses of Owner's needs, planning surveys, site evaluations and comparative studies of prospective sites and solutions. (d) Identify and analyze requirements of governmental authorities and regulatory agencies involved in approval or permitting any aspect of Project. (e) Provide general economic analysis of Owner's requirements applicable to various alternatives. (f) Prepare a Report with appropriate exhibits indicating clearly the considerations involved and the alternative solutions available to Owner, and setting forth Architect's findings and recommendations with opinions of probable costs. Owner. (g) Furnish ten (10) copies of the Report and present and review it in person with 2.2 Design Development Phase If Architect is to provide professional services with respect to the Project during the Design Development Phases, Architect shall: (a) Consult with Owner and determine the general design concept and Project requirements based upon information furnished by Owner as well as any approved Schematic Design documents on the Project. (b) Prepare and submit to Owner preliminary design documents consisting of final design criteria, preliminary drawings, an outline of specifications, and written descriptions of all significant features of Project. (c) Prepare and submit to Owner a requirements checklist of any subsurface investigation, additional data, permits, or other information and requirements which is anticipated will be necessary for the design or construction of Project. -2- (d) Provide written disclosure to Owner of significant design assumptions and design risks inherent in or presented by design alternatives, and make recommendations to Owner based thereon. (e) Prepare and submit to Owner a preliminary cost estimate for the Project including construction cost, contingencies, professional compensation, consultant fees, costs of land and rights of way, compensation for damages and finance costs, if any. (f) Architect shall furnish ten (10) copies of each above referenced submittal document to Owner for Owner's use, and shall review same in person with Owner. 2.3 Construction Documents and Bidding Phase If Architect is to provide professional services with respect to the Project during the Construction Documents and Bidding Phase, Architect shall: (a) After consultation with the Owner, receipt of Owner's selection of any design options and review of the Preliminary Design Documents, if any, prepare and submit to Owner final Drawings showing the scope, extent and character of the work to be performed by contractors, and Specifications describing such work and the requirement therefor. Such plans and Specifications shall comply with applicable building codes and requirements of regulatory agencies having any approval authority. (b) Make reasonable revisions to the Drawings and Specifications requested by Owner. (c) Provide technical criteria, written descriptions and design data for Owner's use, and disclose any significant design risks inherent in or presented by design choices. (d) Based upon Architect's best professional judgment, prepare and submit to Owner a current detailed Opinion of Probable Cost for the Project including construction cost, contingencies, professional compensation, consultant fees, land and right of way costs, damages and finance costs, if any. (e) Prepare and submit to Owner draft forms of contract agreement, general and special conditions, bid forms, invitations to bid, information for bidders, forms of warranty and including any special requirements imposed upon such contracts by any federal or other funding source and by any regulatory agency. In preparing such draft forms, Architect shall consider and incorporate, to the extent both advisable and feasible, Owner's standard forms of agreement, warranty, general conditions and selected specifications. (f) After review and comment by Owner, prepare and submit final forms of contract agreement, general and special conditions, bid forms, invitations to bid, information for bidders, and forms of warranty, together with any Addenda which may be required or appropriate -3- to correct errors, clarify Drawings or Specifications or advise of changes. Twenty -five (25) copies of these final bid documents shall be furnished to Owner. (g) Make recommendations to Owner concerning the need for prequalification of equipment, vendors or bidders, and, if requested by Owner, incorporate prequalification requirements in final bid and construction contract documents. (h) Attend a pre -bid conference with bidders to discuss Project requirements and receive requests for clarification, if any, to be answered by Architect in writing to all plan holders. (i) Consult with and make recommendations to Owner concerning: acceptability of bidders, subcontractors, suppliers, materials, equipment, suitability of proposed "or equals ", amount of bids and any other matter involved in consideration and review of bids and bidders upon which Owner may reasonably request Architect's advice. 2.4 Construction Phase If Architect is to provide professional services with respect to the Project during the Construction Phase, after award by the Owner of a general contract for construction of the Project, Architect shall: (a) Perform all duties and functions to be performed by Architect/Engineer under the terms of the construction contract. (b) Visit the Project site, perform observations as to the progress and quality of the work and advise the Owner as to same. The frequency and level of observation shall be commensurate with the nature of the work and size of the Project, except that any specific provisions set forth in Appendix A - Scope of Services concerning the level of observation shall determine Architect's obligation concerning level of observation. (c) Make determinations as to whether the work is proceeding in accordance and compliance with the construction contract documents. (d) Promptly advise the Owner in writing of any omissions, substitutions, defects or deficiencies noted in the work of any contractor, subcontractor, supplier or vendor on the Project. (e) Reject any work on the Project that does not conform to the contract documents. (f) On request of the Owner or the construction contractor, issue written interpretations as to the Drawings and Specifications and requirements of the construction work. (g) Review shop drawings, samples, product data and other submittals of the contractor for conformance with the design concept of Project and compliance with the Drawings, Specifications and other contract documents, and indicate to Contractor and Owner with respect E thereto, any exceptions noted, or modifications or resubmittals required. (h) Review all applications of Contractor for payment and in connection with same, issue certificates for payment to the Owner for such amounts as are properly payable under the terms of the construction contract. Each such certificate shall constitute Architect's representation to Owner that he has inspected the Project and that to the best of his knowledge, the work for which payment has been sought has been completed by Contractor in accordance with the Drawings, Specifications and other contract documents. (i) Subject to written concurrence by Owner, render a written recommendation to Owner concerning all proposed substitutions of material and equipment. 0) Draft, for Owner's consideration, and offer recommendations upon, all proposed change orders and contract modifications. (k) On application for final payment by the Contractor, make a final inspection of the Project, assembling and delivering to the Owner any written guaranties, instruction manuals, as -built drawings, diagrams and charts required by the contract documents, and issuing a certificate of final completion of the Project. (1) The Architect shall, if so provided in the construction contract, be the interpreter of the construction documents and arbiter of claims and disputes thereunder. Upon written request of the Owner or Contractor, the Architect shall promptly make written interpretations of the contract documents and render written decisions on all claims, disputes and other matters relating to the execution or progress of the work on the Project. The interpretations and decisions of the Architect shall be final and binding on the Contractor and Owner, unless the Director of Public Works of the Owner shall, within seven calendar days after receipt of the Architect's interpretation or decision, file his written objections thereto with the Architect and Contractor. 2.5 Additional Responsibilities This paragraph applies to all phases of Architect's work. (a) Architect shall be responsible for the professional quality, technical accuracy, timely completion and coordination of all of Architect's work, including that performed by Architect's consultants, and including designs, Drawings, Specifications, reports and other services, irrespective of Owner's approval or acquiescence in same. Architect shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in his work. (b) Architect shall be responsible, in accordance with applicable law, to Owner for all loss or damage to Owner caused by Architect's negligent act or omission; except that Architect hereby irrevocably waives and excuses Owner and its attorneys from compliance with any requirement to obtain a certificate of review as a condition precedent to commencement of an action, including any such requirements set forth in Section 13 -20 -602, C.R.S. or similar statute. -5- (c) Architect's professional responsibility shall comply with the standard of care applicable to the type of architectural and engineering services provided, commensurate with the size, scope and nature of the Project. (d) Architect shall be completely responsible for the safety of Architect's employees in the execution of work under this Agreement, shall provide all necessary safety equipment for said employees, and shall hold harmless and indemnify and defend Owner from any and all claims, suits, loss or injury to Architect's employees irrespective of whether such injury or loss was in whole or in part caused or contributed to by Owner or Owner's agents or employees or any dangerous condition upon or at the Project site. (e) Architect acknowledges that, due to the nature of architectural and related professional services and the impact of same on the Project, the Owner has a substantial interest in the personnel and consultants to whom Architect assigns principal responsibility for services performed under this Agreement. Consequently, Architect represents that Architect has selected and intends to employ or assign the key personnel and consultants identified in Appendix C - "Identification of Personnel, Subcontractors and Task Responsibility ", attached hereto for the Project assignments and areas of responsibility stated therein. Within 10 days of execution of this Agreement, Owner shall have the right to object in writing to employment on the Project of any such key person, consultant or assignment of principal responsibility, in which case Architect will employ alternate personnel for such function or reassign such responsibility to another to whom Owner has no reasonable objection. Thereafter, Architect shall not assign or reassign Project work to any person to whom Owner has reasonable objection. Within 5 days of execution of this Agreement, Architect shall designate in writing a Project representative who shall have complete authority to bind Architect, and to whom Owner should address communications. (f) Promptly after execution of this Agreement and upon receipt of authorization from Owner to proceed, Architect shall submit to Owner for approval a schedule showing the order in which Architect proposes to accomplish his work, with dates on which he will commence and complete each major work item. The schedule shall provide for performance of the work in a timely manner so as to not delay Owner's time table for achievement of interim tasks and final completion of Project work. Additionally, Architect acknowledges and agrees that he will schedule and perform the work on the Project so as to achieve completion of the Schematic Design Phase on or before May 15, 1997, completion of the Design Development Phase on or before June 30, 1997, and completion of the Construction Documents and Bidding Phase on or before September 1, 1997. (g) Before undertaking any work which Architect considers beyond or in addition to the scope of work and services which Architect has contractually agreed to perform under the terms of this Agreement, Architect shall advise Owner in writing (i) that Architect considers the work beyond the scope of this Agreement, (ii) the reasons the Architect believes the out of scope or additional work should be performed, and (iii) a reasonable estimate of the cost of such work. W Architect shall not proceed with such out of scope or additional work until authorized in writing by Owner. The compensation for such authorized work shall be negotiated, but in the event the parties fail to negotiate or are unable to agree as to compensation, then Architect shall be compensated for his direct costs and professional time at the rates set forth in Appendix B - "Fee Schedule ". SECTION 3. OWNER'S RESPONSIBILITIES 3.1 Owner shall: (a) Designate a representative to whom all communications from Architect shall be directed and who shall have limited administrative authority on behalf of Owner to receive and transmit information and make decisions with respect to Project. Said representative shall not, however, have authority to bind Owner as to matters of legislative or fiscal policy, nor to contract additions or obligations exceeding a value which is the lesser of $10,000 or 5% of an awarded contract price. (b) Advise Architect of Owner's Project requirements including: objective, project criteria, use and performance requirements, special considerations, physical limitations, financial constraints, and required construction contract provisions and standards, and siting considerations. (c) Provide Architect with available information pertinent to the Project including any previous reports, studies or data possessed by Owner which relates to design or construction of the Project. (d) Assist in arranging for Architect to have access to enter private and public property as required for Architect to perform his services. (e) Examine all studies, reports, sketches, Drawings, Specifications, proposals and other documents presented by Architect, and render in writing decisions pertaining thereto within a reasonable time. The Owner's approval of Drawings, design, Specifications, reports and incidental architectural and engineering work or materials furnished hereunder shall not in any way relieve the Architect of responsibility for the professional adequacy of his work. The Owner's review, approval or acceptance of, or payment for, any of the services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement. (f) Upon advice of the necessity to do so from Architect, obtain required approvals and permits for the Project. The Architect shall provide all supportive documents and exhibits necessary for obtaining said approvals and permits. (g) Notify Architect whenever Owner becomes aware of any substantial development or occurrence which materially affects the scope or timing of Architect's services. -7- (h) Owner shall perform its obligations and render decisions within a reasonable time under the presented circumstances. However, given the nature of Owner's internal organization and requirements, a period of 14 days shall be presumed reasonable for any decision not involving policy decision or significant financial impact. A period of 45 days shall be presumed reasonable for Owner to act with respect to any matter involving policy or significant financial impact. (i) Owner shall be responsible for the safety of Owner's employees on the Project site during Construction Phase and shall hold Architect harmless and indemnify Architect from any and all injury to Owner's employees occurring on the Project site during the Construction Phase. 0) Owner shall include a provision in all construction contracts providing for the Contractor to indemnify Architect to the same extent as the Contractor is required to indemnify the Owner. SECTION 4. TIME FOR PERFORMANCE Architect's obligation to render services shall continue for such period of time as may reasonably be required for completion of the work contemplated in Appendix A - Scope of Services and Section 1 of this Agreement. SECTION 5. PAYMENT 5.1 Owner will pay to Architect as full compensation for all services required to be performed by Architect under this Agreement, except for services for additional work or work beyond the scope of this Agreement, a maximum amounts not to exceed $20,500.00, to be computed in accordance with this Section and Appendix B - "Fee Schedule." 5.2 Architect shall submit periodic, but not more frequently than monthly, applications for payment, aggregating to not more than the maximum amount, for actual professional services rendered, and for reimbursable expenses incurred. Such applications shall be submitted with appropriate documentation that such services have been performed and expenses incurred. Thereafter, Owner shall pay Architect for the amount of the application within 40 days of the date of billing, provided that sufficient documentation has been furnished, and further provided that Owner will not be required to pay more than 75% of the maximum amount unless the Architect's services on the Project phases for which this Agreement is applicable have been satisfactorily completed and all required Architectural submittals have been provided. 5.3 The rates of compensation for service and for reimbursable expenses to be used with periodic and final payment applications shall be those set forth in Appendix B - "Fee Schedule." 5.4 No separate or additional payment shall be made for profit, overhead, local telephone expenses, lodging, routine photocopying, computer time, secretarial or clerical time or similar expenses unless otherwise provided and listed in Appendix B - "Fee Schedule." 5.5 No compensation shall be paid to Architect for services required and expenditures incurred in correcting Architect's mistakes or negligence. 5.6 Compensation for authorized work beyond the scope of this Agreement shall be governed by Paragraph 2.5(g). SECTION 6. TERMINATION 6.1 The Owner reserves the right to terminate this Agreement and Architect's performance hereunder, at any time upon written notice, either for cause or for convenience. Upon such termination, Architect shall cease all work and stop incurring expenses, and shall promptly deliver to the Owner all data, Drawings, Specifications, reports, estimates, calculations, summaries and all other information, and materials as Architect may have accumulated in performing this Agreement, together with all finished work and work in progress. 6.2 Upon termination of this Agreement for events or reasons not the fault of Architect, Architect shall be paid at the rates specified in Appendix B - "Fee Schedule" for all services rendered and reasonable costs incurred to date of termination; together with any reasonable costs incurred within 10 days of termination provided such latter costs could not be avoided or were incurred in mitigating loss or expenses to Owner or Architect. In no event shall payment to Architect upon termination exceed the maximum compensation provided for complete performance in paragraph 5.1 and Appendix B. 6.3 In the event termination of this Agreement or Architect's services is for breach of this Agreement by Architect, or for other fault of Architect including but not limited to any failure to timely proceed with work, or to pay its employees and consultants, or to perform work according to the highest professional standards, or to perform work in a manner deemed unsatisfactory by Owner's Director of Public Works, then in that event, Architect's entire right to compensation shall be limited to the lesser of (a) the reasonable value of completed work to the Owner as determined by Owner's Director of Public Works or (b) 75% of the rates specified in Appendix "B" for services satisfactorily performed and reimbursable expenses reasonably incurred, prior to date of termination. 6.4 Architect's professional responsibility for his completed work and services shall survive any termination. SECTION 7. GENERAL PROVISIONS 7.1 Ownership of Documents All designs, Drawings, Specifications, technical data, and other documents or instruments procured or produced by the Architect in the performance of this Agreement shall be the sole property of the Owner and the Owner is vested with all rights therein of whatever kind and however created, whether created by common law, statutory law, or by equity. The Architect agrees that the Owner shall have access at all reasonable times to inspect and make copies of all notes, designs, Drawings, Specifications, and all other technical data pertaining to the in work to be performed under this Agreement. In the event Owner uses the designs, Drawings or Specifications provided hereunder for another project independent from Project, without adaptation by Architect, Owner shall hold harmless and indemnify Architect from all loss, claims, injury and judgments arising from the use of such designs, Drawings or Specifications for such other project. 7.2 Insurance and Indemnity (a) Architect agrees that he has procured and will maintain during the term of this Agreement, such insurance as will protect him from claims under workers' compensation acts, claims for damages because of bodily injury including personal injury, sickness or disease or death of any of his employees or of any person other than his employees, and from claims or damages because of injury to or destruction of property including loss of use resulting therefrom; and such insurance will provide for coverage in such amounts as set forth in subparagraph (b). (b) The minimum insurance coverage which Architect shall obtain and keep in force is as follows: (i) Workers' Compensation Insurance complying with statutory requirements in Colorado and in any other state or states where the work is performed. (ii) Comprehensive General and Automobile Liability Insurance with limits not less than Four Hundred Thousand and No /100 Dollars ($400,000.00) per person and occurrence for personal injury, including but not limited to death and bodily injury, and Four Hundred Thousand and No /100 Dollars ($400,000.00) per occurrence for property damage. (iii) Professional Liability Insurance in amounts and form, and with a deductible, acceptable to Owner. (c) Architect agrees to hold harmless, defend and indemnify Owner from and against any liability to third parties, arising out of negligent acts, errors or omissions of Architect, his employees, subcontractors and consultants. 7.3 Notices Any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to either the Owner or the Architect by the other party shall be in writing and shall be deemed duly served and given when personally delivered to the party to whom it is directed, or in lieu of such personal service when deposited in the United States mail, first -class postage prepaid, addressed to the Owner, Attention: Tom Cvar, Department of Public Works, 211 E. "D" Street, Pueblo, Colorado, or to the Architect at 429 West 10th Street, #202, Pueblo, Colorado, 81003. 7.4 Entire Agreement This instrument contains the entire agreement between the Owner and the Architect respecting the Project, and any other written or oral agreement or representation -10- respecting the Project or the duties of either the Owner or the Architect in relation thereto not expressly set forth in this instrument and its appendices is null and void. 7.5 Successors and Assigns This Agreement shall be binding on the parties hereto and on their partners, heirs, executors, administrators, successors, and assigns; provided, however, neither this Agreement, nor any part thereof, nor any moneys due or to become due hereunder to the Architect may be assigned by him without the written consent of the Owner. 7.6 Amendments No amendment to this Agreement shall be made nor be enforceable unless made by written Amendment signed by an authorized representative of Architect and by Owner's Director of Public Works. 7.7 Choice of Law This Agreement shall be governed and interpreted in accordance with the laws of the State of Colorado. 7.8 Equal Employment Opportunity In connection with the performance of this Agreement, Architect shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, handicap or age. Architect shall endeavor to insure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, handicap or age. 7.9 Severabilitv If any provision of this Agreement, except for Section 2.5, is determined to be directly contrary to and prohibited by law or the requirements of any federal grant or other Project funding source, then such provision shall be deemed void and the remainder of the Agreement enforced. However, it is the intent of the parties that Section 2.5 of this Agreement not be severable, and that if any provision of said section be determined to be contrary to law or the terms of any federal grant, then this entire Agreement shall be void. 7.10 Appropriations Subject to execution of this Agreement by the Director of Finance certifying that a balance of appropriation exists and funds are available, the amount of money appropriated for this Agreement is equal to or in excess of the maximum compensation payable hereunder; provided, however, that if construction is phased and subject to annual appropriation, funds only in the amount of initial appropriation are available and Architect shall confirm availability of funds before proceeding with work exceeding initial and subsequent annual appropriations. SECTION 8. DISPUTES 8.1 Any dispute or disagreement between Architect and Owner arising from or relating to this Agreement or Architect's services or right to payment hereunder shall be determined and decided by the Owner's Director of Public Works whose written decision shall be final and binding unless judicial review is sought in a Colorado Court of competent jurisdiction pursuant to Rule 106, C.R.C.P. -11- 8.2 Pending resolution of any dispute or disagreement, or judicial review, Architect shall proceed diligently with performance of his work under this Agreement. 8.3 See Attached Appendix D - Dispute Resolution. SECTION 9. APPENDICES 9.1 The following Appendices are attached to and made a part of this Agreement: Appendix A - "Scope of Services" consisting of one (1) page. Appendix B - "Fee Schedule" consisting of one (1) page. Appendix C - "Identification of Personnel, Subcontractors and Task Responsi- bility" consisting of one (1) page. Appendix D - "Article 8.3 - Dispute Resolution" consisting of one (1) page. IN WITNESS WHEREOF the parties hereto have made and executed this Agreement as of the day and year first above written. CITY OF PUEBLO, A MUNICIPAL CORPORATION By e�7' , Presiders of City Council Attest: r,, City Cl ({ f ARCHITECT: HGF ARCHITECTS, INC. Joln M. Barnosky Principal Architect and President [SEAL] BALANCE OF APPROPRIATION EXISTS FOR THIS CONTRACT AND FUNDS ARE AVAILABLE. ' A�JL) Director of inance APPROVED AS TO FORM: City Attorn JACIMPUSLIC W\EAGLRIDG\PASAGREE.WPD -1 APPENDIX A & B (Combined) SCOPE OF SERVICES AND FEE SCHEDULE 1) Facility Program Document $1,500.00 2) Preparation of two (2) Alternative Site Designs $1,000.00 3) Schematic & Design Development $3,750.00 4) Construction Drawings and Bid Documents $10,450.00 5) Construction Contract Observation $3,800.00 TOTAL FEE $20,500.00 *Fee does not include: Lot improvement survey subdivision documents, existing topographical survey, Geotechnical report, Geotechnical materials testing. APPENDIX C IDENTIFICATION OF PERSONNEL, SUBCONTRACTORS & TASK RESPONSIBILITY Structural Kilstofte Engineering Company HVAC, Plumbing Systems Engineering Corporation (Engineering Consultant) Electrical Kohnert Engineering (Engineering Consultant) IF Article 8.3 Dispute Resolution All claims, disputes or controversies arising out of, or in relation to the interpretation, application, or enforcement of this agreement shall be initially negotiated between the designated project representatives of both parties. If negotiation between the designated project representatives does not result in a settlement of the matter, it shall be referred to the principal of each firm or its assignee, for joint discussion and attempted resolution of the matter. Both parties agree that if the matter cannot be resolved by mutual agreement of the principals, the matter will be referred to an alternate dispute resolution process which shall initially be mediation. Mediator shall be selected by and mutually agreed to by both parties. Mediator shall hear the matter and provide an informal opinion and advice, none of which shall be binding upon the parties, but is expected by the parties to help resolve the dispute. Said informal opinion and advice shall be submitted to the parties within twenty (20) days following written demand for mediation. The mediator's fee shall be shared equally by the parties. If mediation fails to resolve the dispute either party may then pursue another form of alternate dispute resolution or litigation. Binding arbitration shall not be a remedy to the dispute.