Item 9 - Consultant Agreement - Mark Cavagnero
Distributed: January 14
AGENDA REPORT SUMMARY c,\
_ TO:
Honorable Mayor and Members of the City Council
Honorable Chairman and Members of the Redevelopment Agency
FROM:
James L. Bowersox, City Manager/Executive Dir
INITIATED BY:
Robert A. Clark, Director of Community Services
Jennifer Johnson, Senior Management Analys
DATE:
January 18, 2005
SUBJECT:
Approval of a Consultant Agreement Between the Poway Redevelopment Agency and
Mark Cavagnero Associates to Prepare Construction Drawings, Specifications,
Cost Estimates, and Construction Administration for an Art Center, Train Depot, Farmers
Market, and Multi-tenant Restaurant
ABSTRACT
Staff has negotiated a contract with Mark Cavagnero Associates to continue to provide architectural services
for the art center, train depot, farmers market, and multHenant restaurant within the Old Poway Master Plan
area. The new agreement addresses the remaining portion of the project, which involves construction drawings,
sDecifications,cost estimates, and constr\Jction administration.
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c
ENVIRONMENTAL REVIEW
- This contract is not subject to CEQA requirements. Environmental review has been or will be performed
for review of the project itself.
FISCAL IMPACT
There are sufficient funds available in CIP projects Community Fine Art Center (5540), Old Poway Park
Train Depot (5649), and Old Poway Park Improvements (5656A) for this contract.
ADDITIONAL PUBLIC NOTIFICATION AND CORRESPONDENCE
A copy of this report was sent to Mark Cavagnero Associates, members of the Community Fine Arts
Advisory Committee, the Poway Midland Railroad Volunteer Board, John Augustine, Valerie Bailey,
Gary Hoyt, Doug Mann, Kevin McNamara, Roger Mohling, Phil and Cleta Spear, Norman Switzer, sec,
and Cox Communications.
RECOMMENDATION
It is recommended that the City Council/Redevelopment Agency authorize the City ManagerlExecutive Director
to execute the agreement with Mark Cavagnero Associates for architectural services for the art center, train
deDot, farmers market, and multi-tenant restaurant in the Old Powav Master Plan area.
ACTION
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January 18, 2005 Item #-9-
CITY OF POWAY
AGENDA REPORT
This report is inctuded on the Consent Calendar. There will be no separate discussion of the report prior to approval by the City Council unless members of
the Council, staff or pUblic request it to be removed from the Consent Calendar and discussed separately. If you wish to have this report putled for
discussion, please fill out a slip indicating the report number and give it to the City Clerk prior to the beginning of the City Council meeting.
TO:
Honorable Mayor and Members of the City Council
Honorable Chairman and Members of the Redevelopment Agency
FROM:
James L. Bowersox, City ManagerfExecutive Dire
INITIATED BY:
Robert A. Clark, Director of Community Services
Jennifer Johnson, Senior Management Analyst
DATE:
January 18, 2005
SUBJECT:
Approval of a Consultant Agreement Between the Poway Redevelopment
Agency and Mark Cavagnero Associates to Prepare Construction Drawings,
Specifications, Cost Estimates, and Construction Administration for an Art
Center, Train Depot, Farmers Market, and Multi-tenant Restaurant
BACKGROUND
At a City Council Workshop in the fall of 2000, several property owners voiced their vision for
Old Poway and many residents spoke in support of the inclusion of an arts center. These
introductory comments set forth a process that culminated in the development of the Old Poway
Park Master Plan. The Master Plan proposes the expansion of the Old Poway Park boundaries to
include an art center, relocation and potential expansion of the farmers market, accommodation of
new commercial development, and a train depot to name a few.
On September 3, 2002, Mark Cavagnero Associates (MCA) was hired as the architect responsible
for developing a concept design for the art center. The contract with MCA was expanded to
create an Old Poway Park Master Plan to incorporate the needs and desires of Old Poway Park
uses, the community, and the art center. For the past two years, Mark Cavagnero Associates has
worked with the community, City staff, and a subcommittee of the City Council to identify the
space programming for each building and building elevations. The first phase of the project has
culminated in the preliminary designlimagery for the art center, train depot, farmers market, multi-
tenant restaurant, and the schematic design work for the four buildings.
Staff has negotiated a contract with Mark Cavagnero Associates to continue to provide
architectural services for the art center, train depot, farmers market, and multi-tenant restaurant
within the Old Poway Master Plan area. The new agreement addresses the remaining portion of
the project, which involves construction drawings, specifications, cost estimates, and construction
administration.
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January 18, 2005 Item # q
Approval of a Consultant Agreement Between the poway Redevelopment Agency and Mark Cavagnero Associates
January 18, 2005
Page 2
FINDINGS
Phase II of architectural services with MCA involves design services for four buildings in
Old Poway Park. More specifically, Phase II involves architectural and engineering services for
the design of the art center, train depot, farmers market, and multi-tenant restaurant, with the
expectation that the projects will be built in phases. As a result of the phasing, full design
documentation for all buildings will be completed and coordinated to allow the City to move
forward with the construction of any of the four buildings at any time. MCA will create four
separate drawing sets, which provides flexibility to issue each building for bid separately or
together.
The fee for the design and construction administration is $1,608,500, which includes design ofthe
four buildings and construction administration services for the art center, train depot, and the shell
of a multi-tenant restaurant. The fee also includes the coordination of four separate packages of
documents for four buildings. The agreement provides for additional services and allowances
resulting in a total contract fee of $1 ,807,560. Staff recommends approval of the agreement for
architectural services for the art center, train depot, farmers market, and multi-tenant restaurant to
Mark Cavagnero Associates according to the attached scope of work and fee structure included in
the Standard Agreement (Attachment A).
ENVIRONMENTAL REVIEW
This contract is not subject to CEQA requirements. Environmental review has been or will be
performed for review of the project itself.
FISCAL IMPACT
There are sufficient funds available in CIP projects Community Fine Art Center (5540), Old
Poway Park Train Depot (5649), and Old Poway Park Improvements (5656A) for this contract.
PUBLIC NOTIFICATION AND CORRESPONDENCE
A copy of this report was sent to Mark Cavagnero Associates, members of the Community
Fine Arts Advisory Committee, the Poway Midland Railroad Volunteer Board, John Augustine,
Valerie Bailey, Gary Hoyt, Doug Mann, Kevin McNamara, Roger Mohling, Phil and Cleta
Spear, Norman Switzer, SBC, and Cox Communications.
RECOMMENDATION
It is recommended that the City Council/Redevelopment Agency authorize the City
Manager/Executive Director to execute the agreement with Mark Cavagnero Associates for
architectural services for the art center, train depot, farmers market, and multi-tenant restaurant in
the Old poway Master Plan area. '
Attachment A:
Standard Agreement for Consultant Services with Mark Cavagnero
Associates including the Scope of Work and Fee Structure
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January 18, 2005 Item # q
Attachment A
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STANDARD AGREEMENT FOR CONSUL TANT SERVICES
This Agreement, entered into this day of January, 2005, by and between
the POWAY REDEVELOPMENT AGENCY (hereinafter referred to as "Agency") and
Mark Cavagnero Associates (hereinafter referred to as "Consultant").
RECITALS
WHEREAS, Agency desires to obtain the services of a private consultant to
perform architectural services for site layout, architectural, and engineering design for
an art center, train depot, farmers market, and restaurantfcafe. The first phase of the
project was completed under the contract dated September 3, 2002, and culminated
in the preliminary designfimagery for the art center, train depot, farmers market, and
restaurant/cafe and the schematic design work for the four buildings. This contract
addresses the second phase of the project to prepare the construction drawings,
specifications, cost estimates, and construction administration.
WHEREAS, Consultant is a(n) architecture consultant and has represented that
Consultant possesses the necessary qualifications to provide such services; and
WHEREAS, Agency has authorized the preparation of an agreement to retain the
services of Consultant as hereinafter set forth;
NOW, THEREFORE, IT IS MUTUALLY AGREED THAT AGENCY DOES HEREBY
RETAIN CONSULTANT ON THE FOLLOWING TERMS AND CONDITIONS:
1. Scope of Services.
Consultant shall provide services as described in Exhibit" A" and Exhibit
"B" entitled "Special Provisions", attached hereto and made a part hereof.
2. Compensation and Reimbursement.
Agency shall compensate and reimburse Consultant as provided in
Exhibits "A" entitled "City's Special Provisions" and Exhibit "B", entitled "Consultant's
Special Provisions" attached hereto and made a part hereof.
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3. Term of Agreement.
The term and schedule of this Agreement shall be as described on Exhibits "A nand
US" attached hereto and made a part hereof.
4. Termination.
This Agreement may be terminated with or without cause by either party.
Termination without cause shall be effective only upon 50-day written notice to
Consultant. During said 50-day period Consultant shall perform all consulting services
in accordance with this Agreement. This Agreement may be terminated by Agency for
cause in the event of a material breach of this Agreement, misrepresentation by
Consultant in connection with the formation of this Agreement or the performance of
services, or the failure to perform services as directed by Agency. Termination for
cause shall be effected by delivery of written notice of termination to Consultant.
Such termination shall be effective upon delivery of said notice.
5. Confidential Relationship.
Agency may from time to time communicate to Consultant certain
information to enable Consultant to effectively perform the services. Consultant shall
treat all such information as confidential, whether or not so identified, and shall not
disclose any part thereof without the prior written consent of Agency. Consultant
shall limit the use and circulation of such information, even within its own
organization, to the extent necessary to perform the services. The foregoing obligation
of this Paragraph 5, however, shall not apply to any part of the information that Ii) has
been disclosed in publicly available sources of informational Iii) is, through no fault of
Consultant, hereafter disclosed in publicly available sources of information; (iii) is now
in the possession of Consultant without any obligation of confidentiality; or liv) has
been or is hereafter rightfully disclosed to Consultant by a third party, but only to the
extent that the use or disclosure thereof has been or is rightfully authorized by that
third party.
Consultant shall not disclose any reports, recommendations, conclusions
or other results of the services or the existence of the subject matter of this contract
without the prior written consent of the Agency. In its performance hereunder,
Consultant shall comply with all legal obligations it may now or hereafter have
respecting the information or other property of any other person, firm or corporation.
6. Office Space and Clerical Support.
Consultant shall provide its own office space and clerical support at its
sole cost and expense.
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7. Covenant Against Contingent Fees.
Consultant declares that it has not employed or retained any 'company or
person, other than a bona fide employee working for Consultant, to solicit or secure
this Agreement, that it has not paid or agreed to pay any company or person, other
than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or
any other consideration, contingent upon or resulting from the award or making of the
Agreement. For breach of violation of this warranty, Agency shall have the right to
annul this Agreement without liability, or, at its sole discretion, to deduct from the
Agreement price or consideration, or otherwise recover the full amount of such fee,
commission, percentage, brokerage fee, gift or contingent fee.
8. Ownership of Documents.
All memoranda, reports, plans, specifications, maps and other documents
prepared or obtained under the terms of this Agreement shall be the property of
Agency and shall be delivered to Agency by Consultant upon demand.
9. Conflict of Interest and Political Reform Act Obligations.
During the term of this Agreement Consultant shall not act as consultant
or perform services of any kind for any person or entity whose interests conflict in any
way with those of the Agency or the City of Poway. Consultant shall at all times
comply with the terms of the Political Reform Act and the local conflict of interest
ordinance. Consultant shall immediately disqualify itself and shall not use its official
position to influence in any way any matter coming before the Agency in which the
Consultant has a financial interest as defined in Government Code Section 87103.
Consultant represents that it has no knowledge of any financial interests which would
require it to disqualify itself from any matter on which it might perform services for the
Agency.
Consultant shall comply with all of the reporting requirements of the
Political Reform Act and local ordinance. Specifically, Consultant shall file Statements
of Economic Interest with the City Clerk of the City of Poway in a timely manner on
forms which Consultant shall ob~ain from the City Clerk.
10. No Assignments.
Neither any part nor all of this Agreement may be assigned or
subcontracted, except as otherwise specifically provided herein, or to which Agency,
in its sole discretion, consents to in advance thereof in writing. Any assignment or
subcontracting in violation of this provision shall be void.
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11. Maintenance of Records.
Consultant shall maintain all books, documents, papers, employee time
sheets, accounting records, and other evidence pertaining to costs incurred and shall
make such materials available at its office at all reasonable times during the contract
period and for three (3) years from the date of final payment under this Agreement, for
inspection by Agency and copies thereof shall be furnished, if requested.
12. Independent Contractor.
At all times during the term of this Agreement, Consultant shall be an
independent contractor and shall not be an employee of the City of Poway or Agency.
Agency shall have the right to control Consultant only insofar as the results of
Consultant's services rendered pursuant to this Agreement; however, Agency shall not
have the right to control the means by which Consultant accomplishes its services.
13. Licenses, Permits, Etc.
Consultant represents and declares to Agency that it has all licenses,
permits, qualifications, and approvals of whatever nature that are legally required to
practice its profession. Consultant represents and warrants to Agency that Consultant
shall, at its sole cost and expense, keep in effect at all times during the term of this
Agreement, any license, permit, or approval which is legally required for Consultant to
practice its profession.
14. Consultant's Insurance.
Consultant shall provide insurance as set forth in Exhibit "A" attached
hereto and made a part hereof.
15. Liability.
The consultant agrees, to the fullest extent permitted by law, to
indemnify and hold harmless the Client, its officers, directors and employees
(collectively, Client) against all .damages, liabilities or costs, including reasonable
attorneys' fees and defense costs, to the extent caused by the Consultant's negligent
performance of professional services including errors and omissions under this
Agreement and that of its subconsultants or anyone for whom the Consultant is legally
liable.
The Client agrees, to the fullest extent permitted by law, to indemnify and hold
harmless the Consultant, its officers, directors and employees and subconsultants
(collectively, Consultant) against all damages, liabilities or costs, including reasonable
attorneys' fees and defense costs, to the extent caused by the Client's negligent acts
in connection with the Project and the acts of its contractors, subcontractors or
consultants or anyone for whom the Client is legally liable.
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Neither the Client nor the Consultant shall be obligated to indemnify the other party in
any manner whatsoever for the other party's own negligence. .-
16. Consultant Not an Agent.
Except as Agency may specify in writing, Consultant shall have no
authority, expressed or implied, to act on behalf of Agency in any capacity whatsoever
as an agent. Consultant shall have no authority, expressed or implied, pursuant to this
Agreement to bind Agency to any obligation whatsoever.
17. Personnel.
Consultant shall assign qualified and certified personnel to perform
requested services. The Agency shall have the right to review and disapprove
personnel for assignment to Poway projects.
Agency shall have the unrestricted right to order the removal of any
person{s) assigned by Consultant by giving oral or written notice to Consultant to such
effect.
Consultant's personnel shall at all times comply with Agency's drug and
alcohol policies then in effect.
18. Notices.
Notices shall be given as described on Exhibit "A" attached hereto and
made a part hereof.
19. Mediation/Arbitration.
In the event of a dispute between Agency and Consultant concerning the
terms of this Agreement or its performance, the parties agree to mediate such dispute
in accordance with the rules of the American Arbitration Association. In the event that
the subject of such mediation is compensation claimed by Consultant in the event of
termination, Consultant's damages shall be limited to compensation for the GO-day
period for which Consultant would have been entitled to receive compensation if
terminated without cause. In the event of mediation, each party shall bear its own
attorneys' fees and costs incurred.
20. Gender.
Whether referred to in the masculine, feminine, or as "it," "Consultant"
shall mean the individual or corporate consultant and any and all employees of
consultant providing services hereunder.
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21. Entire Agreement.
This Agreement shall constitute the entire understanding between. Consultant
and Agency relating to the terms and conditions of the services to be performed by
Consultant. The Agreement consists of this Standard Agreement for Consultant
Services to which Exhibits UA", UB" and "CU are attached. To the extent that
Consultant's Special Provisions in Exhibit UB" are in conflict with the Standard
Agreement for Consultant Services and the City's Special Provisions in Exhibit "A", the
Standard Agreement for Consultant's Services and City's Special Provisions in Exhibit
"A" will prevail.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
on the date first above written.
Dated:
POWAY REDEVELOPMENT AGENCY
By:
James L. Bowersox
Its:
Executive Director
Dated:
Mark Cavagnero Associates
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January 18, 2005 Item # l
CITY'S
"SPECIAL PROVISIONS"
EXHIBIT "A"
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A. Scope of Services.
Consultant agrees to perform consulting services as required by Agency.
Consultant shall provide the necessary qualified personnel to perform the services.
Specific services to be performed and associated deliverables are stipulated in Exhibit
"B" dated November 23, 2004, and attached hereto and made a part hereof.
Consultant further agrees to provide said services in keeping with the
construction budget set forth in Exhibit "C", and under the following target date and
working assumptions:
Design of All Buildings:
Working Documents - 6 months upon notice to proceed
First Phase of Construction (Train Depot, Multi-Tenant Restaurant, Art
Center Phase 1):
Permitting and Bid Negotiation - estimated 3 Y, months
Construction - estimated 9 Y, months
July 3, 2006 target opening
B. Compensation and Reimbursement.
Agency shall pay Consultant a fee as follows: $1,608,500 for the design
of four buildings (art center, train depot, farmers' market, and cafe/restaurant) and
construction administration of the art center, train depot, and cafe/restaurant in
accordance with the budget and schedule set forth in Exhibits "B" and "C".
Consultant's fee shall include and Consultant shall be responsible for the payment of
all federal, state, and local taxes of any kind which are attributable to the
compensation received.
In addition to said consulting fee, Consultant shall be reimbursed for all
reasonable expenses, including lodging, telephone, and travel (air, auto, rail)
necessarily incurred in performance of the services. Consultant shall bill Agency for
such expenses as incurred, referencing this Agreement. All expenses shall be itemized
and supported by receipts for amounts in excess of Twenty-Five Dollars ($25.00).
Statements for reimbursement of expenses shall be paid within ten (10) days of
approval by Agency. All air travel shall be billed at coach or special fare rates. Only
lodging as approved by the City shall be reimbursable. Consultant shall receive prior
authorization for air travel and lodging expenses. All other expenses shall be
reimbursed in accordance with Agency's cash disbursement policies in effect at the
time incurred.
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C. Term of Agreement.
This Agreement shall be effective from the period commencing upon
execution of this Agreement and ending twenty-one (21) months thereafter, or no later
than October 30, 2006, unless sooner terminated by Agency as provided in the
section of this Agreement entitled "Termination." Upon expiration or termination of
this Agreement, Consultant shall return to Agency any and all equipment, documents
or materials and all copies made thereof which Consultant received from Agency or
produced for Agency for the purposes of this Agreement.
D. Consultant's Insurance.
1. Coverages:
Consultant shall obtain and maintain during the life of this
Agreement all of the following insurance coverages:
(a). Comprehensive General Liability, including premises-
operations, products/completed, broad form property damage, and blanket
contractual liability with the following coverages:
General Liability$ 500,000 per person per
occurrence/
....... $1,000,000 aggregate per
occurrence
$500,000 property damage per
occurrence
(b) Automobile Liability, including owned, hired, and non-owned
vehicles with the following insurance coverages:
Auto Liability........................................... $ 500,000 per person per
occurrence/
$1,000,000 aggregate per
occurrence
$100,000 property damage per
occurrence
(c) Consultant shall obtain and maintain, during the life of the
Agreement, a policy of Professional Errors and Omissions Liability Insurance
with policy limits of not less than $1,000,000.00 combined single limits, per
claim and annual aggregate.
(d) Workers' Compensation insurance in statutory amount. All
of the endorsements which are required above shall be obtained for the policy of
Workers' Compensation insurance.
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2. Endorsements:
Endorsements shall be obtained so that each policy contains the
following three provisions:
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(a) Additional Insured. (Not required for Professional Errors and
Omissions Liability Insurance or Workers' Compensation.)
"POWAY REDEVELOPMENT AGENCY and its elected and appointed
boards, officers, agents, and employees are additional insureds with respect to this
subject project and contract with Agency."
(b) Notice.
"Said policy shall not terminate, nor shall it be canceled, until thirty
(30) days after written notice is given to Agency."
(c) Primary Coverage.
"The policy provides primary coverage to Agency and its elected
and appointed boards, officers, agents, and employees. It is not secondary or in any
way subordinate to any other insurance or coverage maintained by Agency."
3. Insurance Certificates:
Consultant shall provide Agency certificates of insurance showing the
insurance coverages described in the paragraphs above, in a form and content
approved by Agency, prior to beginning work under this Agreement.
E. Notices.
All notices, billings and payments hereunder shall be in writing and sent to
the following addresses:
To Community Services:
Robert A. Clark
13325 Civic Center Drive
P.O. Box 789
Poway, CA 92074
To Consultant:
Mark Cavagnero Associates
1045 Sansome Street, Suite 200
San Francisco, CA 94111
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January 18, 2005 Item # ~
CONSULTANT'S
SPECIAL PROVISIONS
Exhibit "B"
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November 23, 2004
Robert Clark
Director of Community Services
City of Po way
13325 Civic Center Drive
Poway, CA 92064
Dear Mr. Clark:
Mark Cavagnero Associates is pleased to submit this proposal for professional services to the City of
Poway for design of the full build out of the Train Depot, Market Hall, and Art Center, and for the design
of the shell of the Multi-Tenant Restaurant. The proposal includes design work for the sites associated with
the Art Center and Restaurant, specifically, the sculpture court and entry court for the Art Center, and the
open spaces between the Art Center and Restaurant.
The project is intended to be built in phases. To reflect this, four sets of drawings will be provided at the
completion of the design documentation phase, one for each building. The Art Center documents will also
include drawings to reflect that the Art Center will be built in three phases: Phase I includes the two story
classroom wing and the central Lobby space; Phase 2 includes the Gift Shop and Workstation wing; Phase
3 includes the Temporary Galleries, Exhibit Preparation and Storage spaces. The creation of four separate
drawing sets allows the flexibility to issue each building for bid separately or together
The first phase of construction includes the construction of the Train Depot, the Multi-Tenant Restaurant
and Phase I of the Art Center. As such, this proposal includes bid negotiation and construction
administration services for this first phase of construction only.
ARTICLE 1 ARCHITECT'S RESPONSIBILrrlES
S 1.1 The services performed by the Architect, Architect's employees and Architect's consultants shall be as
enumerated in Articles 2, 3 and 12.
S 1.2 The Architect's services shall be performed as expeditiously as is consistent with professional skill and
care and the orderly progress of the Project. The Architect shall submit for the Owner's approval a schedule
for the performance of the Architect's services which may be adjusted as the Project proceeds. This
schedule 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 or Owner.
S 1.3 The Architect shall designate a representative authorized to act on behalf of the Architect with respect
to the Project.
S 1.4 The services covered by this Agreement are subject to the time limitations contained in Section 11.5.1.
ARTICLE 2 SCOPE OF ARCHITECT'S BASIC SERVICES
S 2.1 DEfINrrlON
The Architect's Basic Services consist of those described in Sections 2.2 through 2.4 and any other services
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January 18, 2005 Item # ~
identified in Article 12 as part of Basic Services, and include normal structural, mechanical and electrical
engineering services.
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g 2.2WORKING DOCUMENTS PHASE
g 2.2.1 Based on the approved 100% Schematic Design Documents, dated September 15,2004, and any
further adjustments in the scope or quality of the Project or in the construction budget authorized by the
Owner, the Architect shall prepare, for approval by the Owner, Working Documents consisting of
Drawings and Specifications setting forth in detail the requirements for the construction of the Project.
Working Documents phase to include:
a. Prepare drawings that further refine the nature and intent of all aspects of the project including:
I, Engineering drawings showing all site utility routing
2, Grading and paving plans including phasing of site development
3. Fully dimensioned floor plans, sections, and elevations
4. Demolition plans indicating work to be removed during phasing
5. Consulting engineering drawings commensurate with level of completeness of architectural
drawings
b. Draft Specifications including finishes
c. Color boards for client review
d. Cost Estimates at approximately 50% and 90% completion of the Working Documents phase.
g 2.2.2 The Architect shall advise the Owner of any adjustments to previous preliminary estimates of
Construction Cost at 50% and 90% of the Working Documents Phase, as indicated by changes in
requirements or general market conditions. A final cost check will be performed at 100% to track changes
ftom the 90% cost estimate.
g 2.2.3 The Architect shall assist the Owner in connection with the Owner's responsibility for filing
documents required for the approval of governmental authorities having jurisdiction over the Project.
g 2.3 BIDDING OR NEGOTIATION PHASE
The Architect, following the Owner's approval of the Construction Documents and of the latest preliminary
estimate of Construction Cost, shall assist the Owner in obtaining bids or negotiated proposals and assist in
awarding and preparing contracts for construction.
g 2.4 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT
g 2.4.1 The Architect's responsibility to provide Basic Services for the Construction Phase under this
Agreement commences with the award of the initial Contract for Construction and terminates at the earlier
of the issuance to the Owner of the final Certificate for Payment or 60 days after the date of Substantial
Completion of the Work.
g 2.4.2 The Architect shall provide administration of the Contract for Construction as set forth below and in
the edition of AIA Document A20 I, General Conditions of the Contract for Construction, current as of the
date of this Agreement, unless otherwise provided in this Agreement.
g 2.4.3 Duties, responsibilities and limitations of authority of the Architect under this Section 2.4 shall not
be restricted, modified or extended without written agreement ofthe Owner and Architect with consent of
the Contractor, which consent will not be unreasonably withheld.
g 2.4.4 The Architect shall advise and consult with the Owner during the administration of the Contract for
Construction. The Architect shall have authority to act on behalf of the Owner only to the extent provided
in this Agreement unless otherwise modified by written amendment.
g 2.4.5 The Architect shall visit the site at intervals appropriate to the stage of the Contractor's operations,
typically once every two weeks during construction, or as otherwise agreed by the Owner and the Architect
in Article 12, (1) to become generally familiar with and to keep the Owner informed about the progress and
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quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and
deficiencies in the Work. and (3) to determine in general if the Work is being performed in a manner
indicating that the Work, when fully completed, will be in accordance with the Contract Documehts.
However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check
the quality or quantity of the Work. The Architect shall neither have control over or charge of, nor be
responsible for, the construction means, methods, techniques, sequences or procedures, or for safety
precautions and programs in connection with the Work, since these are solely the Contractor's rights and
responsibilities under the Contract Documents,
Ii 2.4.6 The Architect shall report to the Owner known deviations fiom the Contract Documents and ftom
the most recent construction schedule submitted by the Contractor. However, the Architect shall not be
responsible for the Contractor's failure to perform the Work in accordance with the requirements of the
Contract Documents. The Architect shall be responsible for the Architect's negligent acts or omissions, but
shall not have control over or charge of and shall not be responsible for acts or omissions of the Contractor,
Subcontractors, or their agents or employees, or of any other persons or entities performing portions of the
Work.
Ii 2.4.7 The Architect shall at all times have access to the Work wherever it is in preparation or progress.
Ii 2.4.8 Except as otherwise provided in this Agreement or when direct communications have been specially
authorized, the Owner shall endeavor to communicate with the Contractor through the Architect about
matters arising out of or relating to the Contract Documents. Communications by and with the Architect's
consultants shall be through the Architect.
Ii 2.4.9 CERTIFICATES FOR PAYMENT
Ii 2.4.9.1 The Architect shall review and certity the amounts due the Contractor and shall issue certificates in
such amounts.
Ii 2.4.9.2 The Architect's certification for payment shall constitute a representation to the Owner, based on
the Architect's evaluation ofthe Work in Section 2.4.5 and on the data comprising the Contractor's
Application for Payment, that the Work has progressed to the point indicated and that, to the best of the
Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract
Documents. The foregoing representations are subject (I) to an evaluation of the Work for conformance
with the Contract Documents upon Substantial Completion, (2) to results of subsequent tests and
inspections, (3) tu correction of minor deviations fi'om the Contract Documents prior to completion, and (4)
to specific qualifications expressed by the Architect.
Ii 2.4.9.3 The issuance of a Certificate for Payment shall not be a representation that the Architect has (I)
made exhanstive or continuous on-site inspections to check the quality or quantity of the Work, (2)
reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of
requisitions received ftom Subcontractors and material suppliers and other data requested by the Owner to
substantiate the Contractor's right to payment, or (4) ascertained how or for what purpose the Contractor
has used money previously paid on account ofthe Contract Sum.
Ii 2.4.10 The Architect shall not have authority to reject Work that does not conform to the Contract
Documents. Whenever the Architect considers it necessary or advisable, the Architect shall have authority
to require inspection or testing of the Work in accordance with the provisions of the Contract Documents,
whether or not such Work is fabricated, installed or completed. However, neither this authority of the
Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give
rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment
suppliers, their agents or employees or other persons or entities performing portions of the Work.
Ii 2.4.11 The Architect shall review and approve or take other appropriate action upon the Contractor's
submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking
for conformance with information given and the design concept expressed in the Contract Documents. The
Architect's action shall be taken with such reasonable promptness as to cause no delay in the Work or in the
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.
activities of the Owner, Cootractor or separate contractors, while allowing sufficient time in the Architect's
professional judgment to permit adequate review. Review of such submittals is not conducted for the
purpose of determining the accuracy and completeness of other details such as dimensions and quantities,
or for substantiating instructions for installation or performance of equipment or systems, all of which
remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review
shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect,
of any construction means, methods, techniques, sequences or procedures. The Architecrs approval of a
specific item shall not indicate approval of an assembly of which the item is a component.
fi 2.4.12 If professional design services or certifications by a design professional related to systems,
materials or equipment are specifically required of the Contractor by the Contract Documents, the Architect
shall specifY appropriate performance and design criteria that such services must satisfY. Shop Drawings
and other submittals related to the Work designed or certified by the design professional retained by the
Contractor shall bear such professional's written approval when submitted to the Architect. The Architect
shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or
approvals performed by such design professionals.
fi 2.4.13 The Architect shall prepare Change Orders and Construction Change Directives, with supporting
docwnentation and data if deemed necessary by the Architect as provided in Sections 3.1.1 and 3.3.3, for
the Owner's approval and execution in accordance with the Contract Documents, and may authorize minor
changes in the Work not involving an adjustment in the Contract Sum or an extension of the Contract Time
which are consistent with the intent of the Contract Docwnents.
fi 2.4.14 The Architect shall conduct inspections to determine the date or dates of Substantial Completion
and the date offmal completion, shall receive fi'om the Contractor and forward to the Owner, for the
Owner's review and records, written wammties and related documents required by the Contract Docwnents
and assembled by the Contractor, and shall issue a fmal Certificate for Payment based upon a final
inspection indicating the Work complies with the requirements of the Contract Docwnents.
fi 2.4.15 The Architect shall interpret and decide matters concerning performance of the Owner and
Contractor under, and requirements of, the Contract Docwnents on written request of either the Owner or
Contractor. The Architect's response to such requests shall be made in writing within any time limits agreed
upon or otherwise with reasonable promptuess.
fi 2.4.16 Interpretations and decisions of the Architect shall be consistent with the intent of and reasonably
inferable fi'om the Contract Docwnents and shall be in writing or in the form of drawings. When making
such interpretations and initial decisions, the Architect shall endeavor to secure faithful performance by
both Owner and Contractor, shall not show partiality to either, and shall not be liable for results of
interpretations or decisions so rendered in good faith.
fi 2.4.17 The Architect shall render initial decisions on claims, disputes or other matters in question between
the Owner and Contractor as provided in the Contract Docwnents. However, the Architect's decisions on
matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract
Docwnents.
fi 2.4.18 The Architect's decisions on claims, disputes or other matters in question between the Owner and
Contractor, except for those relating to aesthetic effect as provided in Section 2.4.17 , shall be subject to
mediation and arbitration as provided in this Agreement and in the Contract Documents.
ARTICLE 3 ADDITIONAL SERVICES
fi 3.1 GENERAL
fi 3.1.1 The services described in this Article 3 are not included in Basic Services unless so identified in
Article 12, and they shall be paid for by the Owner as provided in this Agreement, in addition to the
compensation for Basic Services. The services described under Sections 3,2 and 3.4 shall only be provided
if authorized or confirmed in writing by the Owner. If services described under Contingent Additional
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January 18, 2005 Item # --L
Services in Section 3.3 are required due to circumstances beyond the Architect's control, the Architect shall
notify the Owner prior to commencing such services. If the Owner deems that such services described
under Section 3.3 are not required, the Owner shall give prompt written notice to the Architect. If the
Owner indicates in writing that all or part of such Contingent Additional Services are not required, the
Architect shall have no obligation to provide those services.
~ 3.2 PROJECT REPRESENTATION BEYOND BASIC SERVICES
~ 3.2.1 Ifmore extensive representation at the site than is described in Section 2.4.5 is required, the
Architect shall provide one or more Project Representatives to assist in carrying out such additional on-site
responsibilities.
~ 3.3 CONTINGENT ADDITIONAL SERVICES
~ 3.3.1 Making revisions in drawings, specifications or other documents when such revisions are:
.1 inconsistent with approvals or instructions previously given by the Owner, including
revisions made necessary by adjustments in the Owner's program or Project budget;
.2 required by the enactment or revision of codes, laws or regulations subsequent to the
approval of such documents within anticipated time ftame; or
.3 due to changes required as a result of the Owner's failure to render decisions in a timely
manner.
~ 3.3.2 Providing services required because of owner initiated changes in the Project including, but not
limited to, size, quality, complexity, the Owner's schedule, or the method of bidding or negotiating and
contracting for construction, except for services required under Section 5.2.5.
~ 3.3.3 Preparing Drawings, Specifications and other documentation and supporting data, evaluating
Contractor's proposals, and providing other services in connection with Change Orders and Construction
Change Directives.
~ 3.3.4 Providing services in connection with evaluating substitutions proposed by the Contractor and
making subsequeut revisions to Drawings, Specifications and other documentation resulting therefrom.
~ 3.3.5 Providing consultation concerning replacement of Work damaged by fire or other cause during
construction, and furnishing services required in connection with the replacement of such Work.
~ 3.3.6 Providing services made necessary by the default of the Contractor, by major defects or deficiencies
in the Work of the Contractor, or by failure of performance of either the Owner or Contractor under the
Contract for Construction.
~ 3.3.7 Providing services in evaluating an extensive number of claims submitted post construction by the
Contractor or others in connection with the Work.
~ 3.3.8 Providing services in connection with a public hearing, a dispute resolution proceeding or a legal
proceeding except where the Architect is party thereto.
~ 3.3.9 Preparing documents for alternate; separate or sequential bids or providing services in connection
with bidding, negotiation or construction prior to the completion of the Construction Documents Phase.
~ 3.4 OPTIONAL ADDITIONAL SERVICES
~ 3.4.1 Providing analyses of the Owner's needs and programming the requirements of the Project.
~ 3.4.2 Providing [mancial feasibility or other special studies.
~ 3.4.3 Providing planning surveys, site evaluations or comparative studies of prospective sites.
~ 3.4.4 Providing special surveys, envirornuental studies and submissions required for approvals of
governmental authorities or others having jurisdiction over the Project.
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~ 3.4.5 Providing services relative to future facilities, systems and equipment.
.-
~ 3.4.6 Providing services to investigate existing conditions or facilities or to make measured drawings
thereof.
~ 3.4.7 Providing services to verifY the accuracy of drawings or other infonnation furnished by the Owner.
~ 3.4.8 Providing coordination of construction perfonned by separate contractors or by the Owner's own
forces and coordination of services required in connection with construction perfonned and equipment
supplied by the Owner.
~ 3.4.9 Providing detailed estimates of Construction Cost beyond what is provided in Basic Services.
~ 3.4.10 Providing detailed quantity surveys or inventories of material, equipment and labor.
~ 3.4.11 Providing analyses of owning and operating costs.
~ 3.4.12 Providing interior design and other similar services required for or in connection with the selection,
procurement or insta\lation of furniture, furnishings and related equipment.
~ 3.4.13 Providing services for planning tenant or rental spaces.
~ 3.4.14 Making investigations, inventories of materials or equipment, or valuations and detailed appraisals
of existing facilities.
~ 3.4.15 Preparing a set of reproducible record drawings showing significant changes in the Work made
during construction based on marked-up prints, drawings and other data furnished by the Contractor to the
Architect.
~ 3.4.16 Providing assistance in the utilization of equipment or systems such as testing, adjusting and
balancing, preparation of operation and maintenance manuals, training personnel for operation and
maintenance, and consultation during operation.
fi 3.4.17 Providing services after issuance to the Owner of the fmal Certificate for Payment, or in the
absence of a fmal Certificate for Payment, more than 60 days after the date of Substantial Completion of
the Work.
fi 3.4.18 Providing services of consultants for other than architectural, structural, mechanical and electrical
engineering portions of the Project provided as a part of Basic Services, unless included as basic services as
outlined in Section 12.1 of this document.
fi 3.4.19 Providing any other services not otherwise included in this Agreement or not customarily furnished
in accordance with generally accepted ~hitectural practice.
ARTICLE 4 OWNER'S RESPONSIBILITIES
fi 4.1 The Owner shall provide full infonnation in a timely manner regarding requirements for and
limitations on the Project as they develop, including Owner's objectives such as, schedule, constraints,
space requirements and relationships, flexibility, expandability, special equipment, systems and site
requirements. The Owner shall furnish to the Architect, within 15 days after receipt of a written request,
infonnation necessary and relevant for the Architect to evaluate, give notice of or enforce lien rights.
~ 4.2 The Owner shall establish and periodically update an overall budget for the Project, including the
Construction Cost, the Owner's other costs and reasonable contingencies related to all of these costs.
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S 4.3 The Owner shall designate a representative authorized to act on the Owner's behalf with respect to the
Project. The Owner or such designated representative shall render decisions in a timely manner pertaining
to documents submitted by the Architect in order to avoid unreasonable delay in the orderly and-Sequential
progress of the Architect's services.
S 4.4 The Owner shall furnish surveys to describe physical characteristics, legal limitations and utility
locations for the site of the Project, and a written legal description of the site. The surveys and legal
infonnation shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining
property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning,
deed restrictions, bOlmdaries and contours of the site; locations, dimensions and necessary data with respect
to existing buildings, other improvements and trees; and information concerning available utility services
and lines, both public and private, above and below grade, including inverts and depths. All the information
on the survey shall be referenced to a Project benchmark.
S 4.5 The Owner shall furnish the services of geotechnical engineers when such services are requested by
the Architect. Such services may include but are not limited to test borings, test pits, determinations of soil
bearing values, percolation tests, evaluations of hazardous materials, ground corrosion tests and resistivity
tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate
recommendations.
S 4.6 The Owner shall furnish the services of consultants other than those designated in Section 4.5 when
such services are requested by the Architect and are reasonably required by the scope of the Project.
S 4.7 The Owner shall furnish structural, mechanical, and chemical tests; tests for air and water pollution;
tests for hazardous materials; and other laboratory and environmental tests, inspections and reports required
by law or the Contract Documents.
S 4.8 Other than as set forth in the Standard Agreement, the Owner shall furnish all legal, accounting and
insurance services that may be necessary at any time for the Project to meet the Owner's needs and
interests. Such services shaIl include auditing services the Owner may require to verify the Contractor's
Applications for Payment or to ascertain how or for what purposes the Contractor has used the money paid
by or on behalf of the Owner.
S 4.9 The services, information, surveys and reports required by Sections 4.4 through 4.8 shall be furnished
at the Owner's expense, and the Architect shall be entitled to rely upon the accuracy and completeness
thereof.
S4.10 The Owner shall provide prompt written notice to the Architect if the Owner becomes aware of any
fault or defect in the Project, including any errors, omissions or inconsistencies in the Architect's
Instruments of Service.
ARTICLE 5 CONSTRUCTION COST
S 5.1 DEfiNITION .
S5.1.1 The Construction Cost shall be the total cost or, to the extent the Project is not completed, the
estimated cost to the Owner of all elements of the Project designed or specified by the Architect.
S 5.1.2 The Construction Cost shall include the cost at current market rates of labor and materials furnished
by the Owner and equipment designed, specified, selected or specially provided for by the Architect,
including the costs of management or supervision of construction or installation provided by a separate
constructiou manager or contractor, plus a reasonable allowance for their overhead and profit. In addition, a
reasonable allowance for contingencies shall be included for market conditions at the time of bidding and
for changes in the Work.
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!i 5.1.3 Construction Cost does not include the compensation of the Architect and the Architect's
consultants, the costs of the land, rights-of-way and fmancing or other costs that are the responsibility of
the Owner as provided in Article 4, .-
!i 5.2 RESPONSIBILITY FOR CONSTRUCTION COST
!i 5.2.1 Evaluations of the Owner's Project budget, the preliminary estimate of Construction Cost and
detailed estimates of Construction Cost, if any, prepared by the Architect, represent the Architect's
judgment as a design professional familiar with the construction industry. It is recognized, however, that
neither the Architect nor the Owner has control over the cost of labor, materials or equipment, over the
Contractor's methods of determining bid prices, or over competitive bidding, market or negotiating
conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated
prices will not vary fi'om the Owner's Project budget or fi'om any estimate of Construction Cost or
evaluation prepared or agreed to by the Architect.
!i 5.2.2 No fixed limit of Construction Cost shall be established as a condition of this Agreement by the
furnishing, proposal or establishment of a Project budget, unless such fixed limit has been agreed upon in
writing and signed by the parties hereto. If such a fixed limit has been established, the Architect shall be
permitted to include contingencies for design, bidding and price escalation, to determine what materials,
equipment, component systems and types of construction are to be included i.n the Contract Documents, to
make reasonable adjustments in the scope of the Project and to include in the Contract Documents alternate
bids as may be necessary to adjust the Construction Cost to the fixed limit. Fixed limits, if any, shall be
increased in the amount of an increase in the Contract Sum occurring after execution of the Contract for
Construction.
!i 5.2.3 If the Bidding or Negotiation Phase has not commenced within 90 days after the Architect submits
the Construction Documents to the Owner, any Project budget or fixed limit of Construction Cost shall be
adjusted to reflect changes in the general level of prices in the construction industry.
!i 5.2.4 If a fixed limit of Construction Cost (adjusted as provided in Section 5.2.3) is exceeded by the
lowest bona fide bid or negotiated proposal, the Owner shall:
.1 give written approval of an increase in such fixed limit;
.2 authorize rebidding or renegotiating of the Project within a reasonable time;
.3 terminate in accordance with paragraph 4 of the Standard Agreement; or
.4 cooperate in revising the Project scope and quality as required to reduce the Construction
Cost.
!i 5.2.5 If the Owner chooses to proceed under Section 5.2,4.4, the Architect, without additional
compensation, shall modify the documents for which the Architect is responsible under this Agreement as
necessary to comply with the fixed limit, if established as a condition of this Agreement. The modification
of such documents without cost to the Owner shall be the limit of the Architect's responsibility under this
Section 5.2.5. The Architect shall be entitled to compensation in accordance with this Agreement for all
services performed whether or not the Construction Phase is commenced.
ARTICLE 6 USE OF ARCHITECrS INSTRUMENTS OF SERVICE
!i 6.1 Drawings, specifications and other documents, including those in electronic form, prepared by the
Architect and the Architect's consultants are Instruments of Service for use solely with respect to this
Project. The Architect and the Architect's consultants shall be deemed the authors and owners of their
respective Instruments of Service and shall retain all common law, statutory and other reserved rights,
including copyrights.
!i 6.2 Upon execution ofthis Agreement, the Architect grants to the Owner a nonexclusive license to
reproduce the Architect's Instruments of Service solely for purposes of constructing, using and maintaining
the Project, provided that the Owner shall comply with all obligations, including prompt payment of all
sums when due, under this Agreement. The Architect shall obtain similar nonexclusive licenses fi'om the
Architect's consultants consistent with this Agreement. Any termination ofthis Agreement prior to
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completion of the Project shall tenninate this license. Upon such tennination, the Owner shall reftain fiom
making further reproductions of Instruments of Service and shall return to the Architect within seven days
of tennination all originals and reproductions in the Owner's possession or control. If and upon the date the
Architect is adjudged in default of this Agreement, the foregoing license shall be deemed tenninated and
replaced by a second, nonexclusive license pennitting the Owner to authorize other similarly credentialed
design professionals to reproduce and, where pennitted by law, to make changes, colTections or additions
to the Instruments of Service solely for purposes of completing, using and maintaining the Project.
!i 6.3 Except for the licenses granted in Section 6.2, no other license or right shall be deemed granted or
implied under this Agreement The Owner shall not assign, delegate, sublicense, pledge or otherwise
transfer any license granted herein to another party without the prior written agreement of the Architect.
However, the Owner shall be pennitted to authorize the Contractor, Subcontractors, Sub-subcontractors and
material or equipment suppliers to reproduce applicable portions ofthe Instruments of Service appropriate
to and for use in their execution of the Work by license granted in Section 6.2. Submission or distribution
of Instruments of Service to meet official regulatory requirements or for similar purposes in connection
with the Project is not to be construed as publication in derogation of the reserved rights of the Architect
and the Architecfs consultants. The Owner shall not use the Instruments of Service for future additions or
alterations to this Project or for other projects, unless the Owner obtains the prior written agreement of the
Architect and the Architect's consultants. Any unauthorized use of the Instruments of Service shall be at the
Owner's sole risk and without liability to the Architect and the Architect's consultants.
ARTICLE 7 DISPUTE RESOLUTION
!i 7.1 MEDIATION
!i 7.1.1 Any claim, dispute or other matter in question arising out of or related to this Agreement shall be
subject to mediation as a condition precedent to arbitration or the institution oflegal or equitable
proceedings by either party. If such matter relates to or is the subject of a lien arising out of the Architect's
services, the Architect may proceed in accordance with applicable law to comply with the lien notice or
filing deadlines prior to resolution of the matter by mediation or by arbitration.
!i 7.1.2 The Owner and Architect shall endeavor to resolve claims, disputes and other matters in question
between them by mediation which, unless the parties mutually agree otherwise, shall be in accordance with
the Construction Industry Mediation Rules of the American Arbitration Association currently in effect.
Request for mediation shall be filed in writing with the other party to this Agreement and with the
American Arbitration Association. The request may be made concurrently with the filing of a demand for
arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable
proceedings, which shall be stayed pending mediation for a period of 60 days fiom the date of filing, unless
stayed for a longer period by agreement of the parties or court order.
!i 7.1.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in
the place where the Project is located, unless another location is mutually agreed upon. Agreements reached
in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
!i 7.3 CLAIMS FOR CONSEQUENTIAL DAMAGES
The Architect and Owner waive consequential damages for claims, disputes or other matters in question
arising out of or relating to this Agreement. This mutual waiver is applicable, without limitation, to all
consequential damages due to either party's tennination in accordance with Article 8.
ARTICLE 8 TERMINATION OR SUSPENSION
!i 8.1 If the Owner fails to make payments to the Architect in accordance with this Agreement, such failure
shall be considered substantial nonperfonnance and cause for tennination or, at the Architect's option,
cause for suspension of perfonnance of services under this Agreement. If the Architect elects to suspend
services, prior to suspension of services, the Architect shall give 60 days' written notice to the Owner. In
the event of a suspension of services, the Architect shall have no liability to the Owner for delay or damage
caused the Owner because of such suspension of services. Before resuming services, the Architect shall be
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paid all sums due prior to suspension and any expenses incurred in the interruption and resumption of the
Architect's services. The Architect's fees for the remaining services and the time schedules shall be
equitably adjusted. .-
S 8.2 In the event oftennination not the fault of the Architect, the Architect shall be compensated for
services perfonned prior to tennination, together with Reimbursable Expenses then due.
ARTICLE 9 MISCELLANEOUS PROVISIONS
S9.1 Tenus in this Agreement shall have the same meaning as those in the edition of AlA Document A201,
General Conditions of the Contract for Construction, CUITent as of the date of this Agreement.
S 9.2 Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be
deemed to have accrued and the applicable statutes oflimitations shall commence to run not later than
either the date of Substantial Completion for acts or failures to act occurring prior to Substantial
Completion or the date of issuance of the final Certificate for Payment for acts or failures to act occurring
after Substantial Completion. In no event shall such statutes of limitations commence to run any later than
the date when the Architect's services are substantially completed.
S 9.3 To the extent damages are covered by property insurance during construction, the Owner and
Architect waive all rights against each other and against the contractors, consultants, agents and employees
of the other for damages, except such rights as they may have to the proceeds of such insurance as set forth
in the edition of AlA Document A20 I, General Conditions of the Contract for Construction, current as of
the date of this Agreement. The Owner or the Architect, as appropriate, shall require of the contractors,
consultants, agents and employees of any of them similar waivers in favor of the other parties enumerated
herein.
S 9.4 The Owner and Architect, respectively, bind themselves, their partners, successors, assigns and legal
representatives to the other party to this Agreement and to the partners, successors, assigns and legal
representatives of such other party with respect to all covenants of this Agreement. Neither the Owner nor
the Architect shall assign this Agreement without the written consent ofthe other, except that the Owner
may assign this Agreement to an institutional lender providing financing for the Project. In such event, the
lender shall assume the Owner's rights and obligations under this Agreement. The Architect shall execute
all consents reasonably required to facilitate such assignment.
S 9.5 This Agreement, together with City's Standard Agreement and the Exhibits thereto, represents the
entire and integrated agreement between the Owner and the Architect and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be amended only by written
instrument signed by both Owner and Architect.
S 9.6 Nothing contained in this Agreement shall create a contractual relationship with or a cause of action in
favor of a third party against either the Owner or Architect.
S 9.7 Unless otherwise provided in this Agreement, the Architect and Architect's consultants shall have no
responsibility for the discovery, presence, handling, removal or disposal of or exposure of persons to
hazardous materials or toxic substances in any fonn at the Project site.
S 9.8 The Architect shall have the right to include photographic or artistic representations ofthe design of
the Project among the Architect's promotional and professional materials. The Architect shall be given
reasonable access to the completed Project to make such representations. However, the Architect's
materials shall not include the Owner's confidential or proprietary infonnation if the Owner has previously
advised the Architect in writing of the specific infonnation considered by the Owner to be confidential or
proprietary. The Owner shall provide professional credit for the Architect in the Owner's promotional
materials for the Project.
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!i 9.9 If the Owner requests the Architect to execute certificates, the proposed language of such certificates
shall be submitted to the Architect for review at least 14 days prior to the requested dates of execution. The
Architect shall not be required to execute certificates that would require knowledge, services or....
responsibilities beyond the scope of this Agreement.
ARTICLE 10 PAYMENTS TO THE ARCHITECT
!i 10.1 DIRECT PERSONNEL EXPENSE
Direct PersolUlel Expense is defined as the direct salaries of the Architect's personnel engaged on the
Project and the portion of the cost of their mandatory and customary contributions and benefits related
thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays,
vacations, employee retirement plans and similar contributions.
!i 10.2 REIMBURSABLE EXPENSES
!i 10.2.1 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 directly related to the
Project, as identified in paragraph B, Exhibit" An to Standard Agreement.
!i 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES
!i 10.3.1 An initial payment as set forth in Section 11.1 is the minimum payment under this Agreement.
!i 10.3.2 Subsequent payments for Basic Services shall be made monthly and, where applicable, shall be in
proportion to services performed within each phase of service, on the basis set forth in Section 1122.
!i 10.3.3 If and to the extent that the time initially established in Section 11.5.1 of this Agreement is
exceeded or extended through no fault of the Architect, compensation for any services rendered during the
additional period oftime shall be computed in the manner set forth in Section I I.3.1.
!i 10.3.4 When compensation is based on a percentage of Construction Cost and any portions of the Project
are deleted or otherwise not constructed, compensation for those portions of the Project shall be payable to
the extent services are performed on tIiose portions, in accordance with the schedule set forth in Section
11.2.2, based on (I) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or proposal is
received, the most recent preliminary estimate of Construction Cost or detailed estimate of Construction
Cost for such portions of the Project.
!i 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAl SERVICES
Payments on account of the Architect's Additional Services and for Reimbursable Expenses shall be made
monthly upon presentation ofthe Architect's statement of services rendered or expenses incurred.
!i 10.5 PAYMENTS WITHHELD
No deductions shall be made from the Architect's compensation on account of penalty, liquidated damages
or other sums withheld from payments to contractors, or on account of the cost of changes in the Work
other than those for which the Architect has been adjudged to be liable.
!i 10.6 ARCHITECT'S ACCOUNTING RECORDS
Records of Reimbursable Expenses and expenses pertaining to Additional Services and services performed
on the basis of hourly rates or a multiple of Direct Personnel Expense shall be available to the Owner or the
Owner's authorized representative at mutually convenient times.
ARTICLE 11 BASIS OF COMPENSATION
The Owner shall compensate the Architect as follows:
!i 11.1 An Initial Payment ofTen Thousand Dollars ($10,000) shall be made upon execution of this
Agreement and credited to the Owner's account at final payment.
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S 11.2 BASIC COMPENSATION
S 11.2.1 For Basic Services, as described in Article 2, and any other services included in Article 12 as part
of Basic Services, Basic Compensation shall be computed as follows: -
Basic Service Compensation as set forth in Exhibit "C" to the Standard Agreement shall be a stipulated
sum of One Million Six Hwulred Eight Thousand Five Hundred Dollars ($1,608,500) for the design of the
full project with a Budget ofTen Million Five Hundred Seventeen Thousand Dollars ($10,517,000)
Construction Cost based on start of construction beginning September 2005, and the Construction of the
First Phase of Construction with a budget of Five Million Seven Hundred Ninety-Seven Thousand Dollars
($5,797,000). Basic Service Compensation is roughly separated into a Design Phase Fee of One Million
Three Hundred Sixty-One Thousand Dollars ($1,361,000) and a Construction Phase Fee of Two Hundred
Forty-Seven Thousand Five Hundred Dollars ($247,500). Architect reserves the right to renegotiate the
Basic Service fee base if the Construction Cost of either phase increases by more than ten percent (10%).
Fee base would be no higher than the contract percentage of the base fee to the construction cost. If a
lesser than full complement of consultants are needed for the increase in scope, the fee base would be
adjusted to a lower, commensurate percentage.
S 11.2.2 Where compensation is based on a stipulated sum or percentage of Construction Cost, progress
payments for Basic Services in each phase shall total the following percentages of the total Basic
Compensation payable. Compensation in each phase will be allocated on a percentage of completion basis.
Phases and fee allocations are set forth below:
Percentages set out below for the design and construction of a single project will be allocated separately for
the Design of the full project and the Construction Administration phase as follows:
Working Documents Phase ~ 100% of Design Phase Fee
First Phase of Construction ~ 100% of the Construction Phase Fee
Bid and Negotiation Phase: 20%
Construction Phase: 80%
S 11.3 COMPENSATION FOR ADDITIONAL SERVICES
S 11.3.1 For Project Representation Beyond Basic Services, as described in Section 3.2, compensation shall
be computed as follows unless as otherwise detennined between the Owner and Architect:
Design Principal's time at a fixed rate of One Hundred Forty Dollars ($135) per hour.
For purposes of this agreement, the Design Principal is Mark Cavagnero.
Managing Principal's time at a fixed rate of One Hundred Twenty- Five Dollars ($1 10) per hour.
For purposes of this agreement, the Managing Principal is Roslyn Cole.
Employees' time at a multiple of Three (3) times their Direct Personnel Expense, ranging from Sixty to
One Hundred Dollars ($60-100) per hour.Except for the following:
Additional Site Visits During Construction Allowance: $ 10,000
Allowance based on 10 Visits at $1000 each for one person, within one day, including travel
reimbursables. Additional site visits will be perfonned on an as needed basis as requested by the
Owner, and are in excess of site visits provided for in Basic Services as outlined in Article 2.4.5.
S 11.3.2 For Additional Services ofthe Architect, as described in Articles 3 and 12, other than (I)
Additional Project Representation, as described in Section 3.2, and (2) services included in Article 12 as
part of Basic Services, but excluding services of consultants, compensation shall be computed, as set forth
in Exhibit "C" to the Standard Agreement, as follows:
Same rates as set out in 11.3.1 above.
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January 18, 2005 Item # q
Additional Services of the Architect to include:
3D Digital Rendering Allowance: $10,000
The work includes generating images of the Train Depot and the Multi-Tenant Restaurant, and further
development of the existing images of the Market Hall and Art Center previously used as design
studies. The images are for submission for Design Review by the City of Po way, as well as for
fundraising purposes.
Midland Road Configuration and Landscape Coordination Allowance: $5,000
The allowance is based on the amount of time needed for similar scope during the Schematic Design
Phase. As the Midland Road project moves forward, we expect to be involved in further coordination
and meetings to provide a comprehensive streetscape integral with the building designs, though it is
unclear at this time the extent of work needed.
Record Drawings Allowance: $6,300
[Scope and description needed.]
Templar's Hall Design Work Allowance: $25,000
The allowance is based on time and materials, approximately 40 hours of principal time and 240 hours
of employee time. The work includes design documents for pennit and construction for an outdoor
deck and enclosure for Templar's Hall. The final documents will be submitted to the City for their use
and coordination for bid and construction. Construction administration is not included, but can be
added at a later date should the work go forward. Time for two (2) presentations to review design is
included. These meetings will be coupled with other meetings related to other scopes of work, thereby
covering the cost of additional travel time and travel expenses.
Historical Society Design Coordination Allowance: $1,000
The allowance is based on time and materials, approximately 4 hours principal time and 4 hours
employee time. MCA will provide time for half a day in for a design charette with a graphics designer
of the City's choice. The work includes MCA's input regarding improvement to the location identity
of the Poway Historical Society. This meeting will be coupled with other meetings related to other
scopes of work, thereby covering the cost of additional travel time and expenses.
g 11.3.3 For Additional Services of Consultants, including additional structural, mechanical and electrical
engineering services and those provided under Section 3.4.19 or identified in Article 12 as part of
Additional Services, a multiple of One and One Tenth ( LlO) times the amounts billed to the Architect for
such services.
Additional Services of Consultants to include:
Watercolor Rendering Allowance: $10,000
The allowance is based on an estimate of two images at $5000 each, based on previous projects. The
work will be provided by a consultant. The renderings will be used for fund-raising.
Mechanical Design for "Campus" Infiastructure with Distributed Main: $16,760
The City of Po way requested that the Distributed Main Mechanical System be extended to support the
mechanical systems of future projects along Midland Road. This will require additional work by our
Mechanical Engineer, and coordination with representatives of the future projects to detennine size
and scope of service, future services, and utility foundations currently needed to support them.
g 11.4 REIMBURSABLE EXPENSES
The fOllowing are projections for Reimbursable Expenses, as described in Section 10.2, and any other items
included in Article 12 as Reimbursable Expenses, a multiple of One and One Tenth (LlO) times the
expenses incurred by the Architect, the Architect's employees and consultants directly related to the
Project. These include in-house CAD plotting of deliverable drawings and will be reimbursed at the rates
equal to local service provider, photocopies of information or images at a rate of 15 cents per page,
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January 18, 2005 Item # ~
facsimile communication at a rate of $ 1.00 per sheet sent, and travel expenses including mileage at the
cUlTent federal rate per mile, tolls, and parking.
.-
Reimbursable Travel Expense Allowance: $40,000
The travel allowance is based on an estimate of $500 per person per trip, and the number
of meetings provided for during the design phase and construction phase under the
contract for Basic Services.
Reimbursable Expense Allowance (excluding travel): $75,000
The allowance is based on previous projects of similar size and scope completed by
Mark Cavagnero Associates. Costs go toward multiple plots and copies of the drawings
and contract documents necessary for coordination during the design and construction
phases for use by the design team, owner, and general contractor. Allowance does not
include copies of contract documents for distribution by general contractor to their
subcontractors. Significant cost also goes toward copies of submittals documenting all
materials being installed are sent ITom the contractor to the architect for approval, from
which multiple copies are made for distribution to appropriate parties. A significant
number of faxes are also needed during the construction phase to expedite coordination
and correspondence between the design team, owner, and contractor.
g 11.5 ADDITIONAL PROVISIONS
g 11.5.1 If the Basic Services covered by this Agreement have not been completed Twenty-One (21) months
of the date hereof, through no fault of the Architect, extension of the Architect's services beyond that time
shall be compensated as provided in Sections 10.3.3 and 11.3.1.
g 11.5.2 Payments are due and payable Thirty (30) days ITom the date of the Architect's received invoice.
Amounts unpaid Thirty (30 ) days after the invoice date shall bear interest at the rate entered below, or in
the absence thereof at the legal rate prevailing ITom time to time at the principal place of business of the
Architect.
I % compounded monthly.
ARTICLE 12 OTHER CONDITIONS OR SERVICES
g12.1 In addition to the Architectural, Structural, Mechanical and Electrical Services referred to in Article
2.1, these Special Consultants are included within the Basic Service provisions of this contract:
Lighting Consultant
Acoustical Engineer
Landscape Architect Civil Engineer Specifications Writer
Cost Estimator (for I estimate at the midpoint of Working Documents phase, plus 16 hours of Value
Engineering time)
Roofing Consultant
g 12.2 The following are not included in the Basic Service provisions of this contract. These services can
be added to the Basic Services upon Owner Request as an Additional Service per Article 11.3.3.
Otherwise, these services should be provided by the Owner in a reasonably timely manner to the Architect
for direction, coordination and implementation:
Telecommunications Consultant
Fountain Consultant
Roofing Inspection Services during Construction
Graphic Designer
g 12.3 The provisions ofthis Agreement include "Attachment I: Supplemental Additional Services."
-END-
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January 18, 2005 Item # ~
ATTACHMENT 1
SUPPLEMENTARY ADDITIONAL SERVICES
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The following services are not included in the Basic Services and they shall be paid for by the Owner in
addition to the compensation for Basic Services. These services shall only be provided, at the rates set
forth in Article 11.3, if authorized in writing by the Owner:
Archltecturallncludlna Consultants
1. Specifically requested presentation material, renderings andlor presentation models. Basic
Services includes several architectural in-house renderings and in-house study models.
2. Public presentations involving design review, planning departments, and other City agencies.
This includes time spent in generating specifically required documents or presentation
material as well as meeting and presentation time. Basic Services shall include up to 6
meetings or presentations with the City Council or Council Subcommittee during the Design
phase of work, and 6 meeting or presentations with the City Councilor Council Subcommittee
during the Construction Administration phase of work. Construction field visits are included in
Basic Services as described in Section 2.4.5,
3. Consultations required to answer third party reviews and resulting revisions.
4, Services resulting from discrepancies, errors, or inaccuracies shown in Owner's surveyor
conditions which could not be accounted for from Owner-provided information.
5, Redesign to reduce cost where the reason for the excessive cost is outside the control of the
Design Professional (i.e.: change or reduction of program type or scope, requirements added
by Regulatory Agencies.)
6. Redesign services requested to accommodate particular construction materials, methods, or
sequences.
7. Redesign of building components previously designed and approved by Owner.
8. Services required for or in connection with the selection, procurement or installation of
furniture, furnishings and related equipment
9. Services in connection with any public hearing, arbitration, or legal proceedings with respect
to the project including assisting in preparation for litigation of arbitration or as a witness or
consultant.
10. Services connected with the preparation of documents for alternate bids or for phased or fast-
track design andlor construction.
11. Telephone, data and security system and equipment design.
12. Audiolvisual design.
13, Fountain design,
14. Construction Administration -Roofing consultant services including pre-roofing conference and
site inspections.
15. Work if design and documentation of the project is phased beyond allocation set out in the
Basic Service proposal.
Consultants
Structural Engineer:
1. Construction site visits beyond 7 visits.
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January 18, 2005 Item # --L
2. Structural Design Services related to Secondary Structural Elements and their attachments.
These are elements that are structurally significant for the function they serve but do not
contribute to the strength or stability of the primary structural system. Examples"include;
a. Stairs. The Basic Services Agreement includes the framing necessary to provide
floor and roof openings for stairs, but not the framing of the stairs themselves.
b. Curtain Wall System and Storefronts.
c. Architectural Cladding systems such as precast panels and DRYVIT Systems, and
the design of metal stud walls to support cladding systems. The Basic Services
Agreement includes only the selection of the typical stud width in consultation with
the architect. It does not include design of the studs and detailing for window
openings, corners, etc.
d Investigation of existing building facades.
e. Skylights. The Basic Services Agreement includes framing necessary to provide roof
openings for skylights, but not the design of the skylights themselves.
1. Flagpoles, antennas, and lighting poles.
g. Supports and seismic bracing for Mechanical, Electrical, or Plumbing Systems.
h. Window Washing Systems and tie-downs
i. Mechanisms and Guide Systems for Elevators, Escalators, and other Conveyor
Systems and associated operating equipment.
j. Retaining walls independent of the primary building.
k. Transformer vaults.
I. Sidewalks over basements.
3. Structural Design Services related to non-structural elements and their attachments. These
are defined as all elements of a building that are not Secondary Structural Elements and are
not part of the Primary Structural System, such as, interior architectural partitions and
ceilings, and other architectural systems.
4. Structural design of site-work elements exterior to and non-contiguous with the building sUch
as culverts and bridges, landscape fumishing such as benches, fountains, pools, signs, etc.
5. The structural engineer has included an allowance of $5,000.00 for relatively minor value
engineering services, such as changing individual elements of a structure. This does not
cover reconfigurations of the global structural systems, such as relocation or reconfiguration
of lateral system elements, global changes of gravity or lateral systems, or items that would
trigger modification of more than a few details. The allowance is based on an estimate of up
to about four days of engineering and a day and a half of drafting.
6, Review of design drawings or specifications prepared by others to determine adequacy of
anchorage of nonstructural or secondary structural elements.
7. Special dynamic analyses such as spectrum or time-history response to seismic forces
(unless required by code), or floor vibration response analysis for foot-fall or vibratory
equipment.
8, Field investigation of existing buildings and structures including surveys of existing
construction, on or adjacent to the site.
9. Preparation of documents for bid-alternates.
10. Special inspections as defined in Section 1701 of the Uniform Building Code.
11. Continuous and/or detailed inspections of construction.
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January 18, 2005 Item #
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12. Establishing design criteria for, designing, or making field observations of shoring for building
excavations or underpinning of adjacent structures.
13. Filing application for andlor obtaining a building permit.
14. Cost estimating and/or quantity take-offs.
15. Preparation of "as-bum" or record set of drawings after completion of the project.
16. Consultations required to answer questions from third party engineering reviews. These
reviews are often conducted by lenders, insurance companies and potential buyers.
17. Changes requested by the third party consultants noted above.
18. Information to be furnished to the structural engineer by others, if needed. Examples include:
a. Special live loads in excess of building code requirements.
b. Special environmental conditions and loads.
19. Services requested after completion of the structural part of the project.
MechanlcaUPlumbinglElectrical Engineer:
1. Project meetings during design phase beyond 6 meetings. Construction site visits beyond 3
trips to cover all disciplines.
2. Costs associated with the permit application, and that the Contractor will ascertain all relevant
Mechanical, Electrical, and Plumbing permits.
3, Review of contractors' shop drawings beyond 2 reviews per submittal for conformance with
design intent and reply to contractor questions.
4. Documentation and details associated with below grade utility routing, inverts and
connections along Midland Road and outside the building property. Basic services include
mechanical, electrical and plumbing systems servicing the buildings, and connections to
utilities located within the building envelopes, as well as determining service connection sizes
and assisting coordination of service routing associated with the distributed main and central
plant system with the project coordinator of the Midland Road Project.
5. Final sprinkler design, sprinkler layout (piping and heads), hydraulic calculations and sign off
by the Fire Marshall for the final fire protection system. Basic services include a performance
specification for the sprinkler systems to meet the hazard criteria for the various spaces.
6. LEED Certification and Sustainability.
7. Fa~de engineering,
Acoustical Consultant:
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1. Construction Administration site visits beyond 2 visits.
Lighting Designer:
1. Custom fixture design or documentation
2. Streetlighting
3. Energy compliance documentation
4. Structural design of support elements for light fixtures
5. Daylighting consulting
6. Presentation materials
7. Construction site visits beyond a final observation site visit encompassing 24 hours for the
Train Depot and Art Center Phase 1, and 6 hours for the Restaurant.
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January 18, 2005 Item # ~
8. Review of contractors' shop drawings beyond 2 reviews per submittal for conformance with
design intent and reply to contractor questions.
9. Photometric calculations and drawings
Landscape Architect:
1. Fountain or water feature design.
2. Waterproofing of fountain, over structure pavements, walls, or planters
Civil Engineer:
1. Boundary and Topographic Survey.
Cost Estimator:
1. Additional estimates beyond one at 50% working drawings stage.
2. Revisions to completed estimates,
3. Use of different estimating formats other than the Davis Langdon standard component
format.
4. Reconciliation with cost estimates prepared by other parties.
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January 18, 2005 Item # 3-
Exhibit "C"
OLD POWAY PARK BUILDINGS
FEE BREAKDOWN
Construction Cost Estimate for Basic Services Scope 1/5/2005
Based on Cost Estimate of October 12, 2004 by Davis Langdon Adamson
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Train Depot $1,955,000
Market Hall $2,530,000
Multi-Tenant Restaurant Shell $774,000
Art Center Phase 1 - Classrooms and Lobby $2,225,000
Art Center Phase 2 - Gift Shop/Cafe and WorKstations $781.000
Art Center Phase 3 - Galleries $1,409.000
Snework $843,000
Total Construction Cost Estimate I $10,517,000
Design Fees for Basic Services
Consunant Working Construction Totals
Documents Phase
Architect - Mark Cavaanero Associates $870,749 $174,050 $1,044,799
Structural Enoineer - Jon Brodv Consultino Enaineers $77,000 $19,000 $96,000
MechanicaVElectricaVPlumbino - Timmons Desion Enaineerina $108,626 $13,350 $121,976
Uahilna Consultant - Auerbach and Glasow $43,000 $13,850 $56,850
Acoustical Consultant - Saner Associates $19,750 $6,750 $26.500
Landscape Archnect - Allowance $42,600 $9,000 $51,600
Civil Enaineer - Allowance $142,500 $11,500 $154,000
Cost Estimator - Davis Lanadon Adamson $36,900 nla $36,900
Specifications Writer - Eileen Kaaelson $14,875 n/a $14,875
Roofing Gonsunant - AllOwance $5,000 $5.000
Subtotal $1,361,000 $247,500 $1,608,500 $1,608,5001
Design Fees and Allowances for Additional Scope Services
Addilional Services provided by MCA
Additional Site Vislls Durina Construction Allowance $10.000
3D Dioital Renderino Allowance $10.000
Midland Road Configuration and Landsca"" Coordination Allowance $5,000
Record Drawinas Allowance $6,300
Templar's Hall Desion WorK Allowance $25,000
Historical Societv Desion Coordination Allowance $1,000
Coordination for Mechanical Design of Campus Infrastructure $3,260
Subtotal $60,560 $60,5601
Additional Services DIOvided by Consuttants to CA
Watercolor Renderina Allowance (Consunant To Be Determined) $10,000
Mechanical Desian tar Campus Infrastructure bv Timmons Desion $10,000
Subtotal $20,000
MCA 10% Override $2.000
Mechanical Design for Campus Infrastructure Reimbursables $1,500
Subtotal $23,500 $23,5001
M
Reimbursable Expenses
Reimbursable Travel ExPense Allowance $40,000
Reimbursable Expense Allowance (excludina travel) $75,000
Subtotal $115,000 $115,0001
IDeslgn Fees Net Total
$1,807,5601
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January 18, 2004 Item # q