HomeMy WebLinkAbout12/18/2002 - STAFF REPORTS (15) DATE: December 18, 2002
TO: City Council
FROM: Executive Director—Airports
CONVENTION CENTER EXPANSION ARCHITECTURAL SERVICES CONTRACT
RECOMMENDATION:
It is recommenced that the City Council approve an Architectural Services Agreement
with Fentress Bradburn Architects LTD, of Denver, Colorado, for the Second Phase
Convention Center Expansion Project. (Note: Project Scope confined to property
currently controlled by the City.)
SUMMARY:
This action will complete the City Council's search for a new Convention Center
architectural firm and allow for the immediate commencement of design for the
Second Phase Expansion Program.
BACKGROUND:
On November 20, 2002, the City Council took action to select Fentress Bradburn
Architects, LTD as the new architectural firm for the design of the Second Phase
Expansion of the Convention Center. This action followed a nationwide search for a
firm. Fentress Bradburn's initial task will be to quickly evaluate the existing facility
and develop a plan, utilizing only property currently under the control of the City, for
current and long-term expansion needs.
During the interviews, all of the firms revealed that a normal design process for the
second phase could take anywhere from 12- 15 months. In reviewing the schedule
with Jim Dunn, it is very important that the completion of the expansion occur by
Christmas of 2004. Working backwards from the deadline provides the following
schedule:
Award Contract December 18, 2002
Begin Design January 2003 (7-8 months)
Bid Project July 2003
Award Construction Contracts August 2003
Commence Construction September 2003 (16 months)
Open December 2004
As can be seen from above, if we get underway in early January, an extremely
accelerated design process will be required. To have a reasonable chance of meeting
this time line will require close coordination with the project construction management
firm, Turner, so that some portions of the work can commence before actual design
work on the total project is completed.
Recent experience with two national architectural firms, Gensler and HNTB, has
resulted in protracted negotiations to develop an agreement form thatthe firms would
agree to sign.The major areas of contention have been the indemnification language,
professional liability provisions and redesign provisions. With no time for this type of
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Convention Center Expansion Architectural Services Contract
December 18, 2002
Page Two
contract negotiations, staff has proposed similar language to Fentress
Bradburn. Specifically, staff proposes that Exhibit"B"to the agreement be as
follows:
EXHIBIT "B"
SPECIAL REQUIREMENTS
Architect has been hired to perform the services described in
the Agreement, which include the creation of one or more
designs, drawings, or plans ("Designs"). Architect
acknowledges that City has budgeted the amount of Twenty
Million Dollars ($20,000,000)for the construction phase of the
Project ("Construction Budget"). Architect utilizing Project
estimating provided by the Construction Management Firm,
shall create designs which will enable the Project to be
constructed within an amount which shall not exceed the
Construction Budget by more than ten percent(10%). Should
City solicit bids for construction of the Project, as such project
has been designed by Architect, and the lowest responsible
bid exceeds the Construction Budget by more than ten percent
(10%), Architect agrees to revise the previous Designs, or to
create new Designs, so that a new price can be negotiated or
the Project can be rebid so that the Project does not exceed
the Construction Budget by more than ten percent (10%).
Notwithstanding the foregoing,Architect is not responsible for
changes in the Project Scope initiated by City and all such
changes shall include appropriate mutually agreed changes to
the construction Budget, as are further set forth in Section 1.8
of this Agreement.
Section 4.3 Prohibition Against Subcontracting or
Assignment. Architect may subcontract with sub design
consultants subject to review and written approval by the City's
Project Administrator.
Section 5.2 Indemnification. This entire section is hereby
replaced with the following: 5.2 City Held Harmless - General
Liability. Except for the sole negligence of City, Architect
undertakes and agrees to defend, indemnify and hold
harmless City, and any and all of City's Boards, officers,
employees, and successors in interest, from and against all
suits and causes of action, claims losses, demands and
expenses, including but not limited to, reasonable attorney's
fees and reasonable costs of litigation, damage(s) including
Architect's employees and agents, or for damage to, or any
manner to the extent arising by reasons of the acts of
omissions in the performance of this Agreement on the part of
Architect, or any of Architect's subcontractor's, employees, or
anyone for whom Architect has obligated itself under this
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Convention Center Expansion Architectural Services Contract
December 18, 2002
Page Three
Contract, whether or not contributed to by any act or omission of City
or any of the City's Boards, officers or employees.
5.25 City Held Harmless - Professional Liability. Architect
undertakes and agrees to indemnify and hold harmless City,
and any and all of City's Boards, officers and employees,from
and against all losses and expenses, including, but not limited
to, reasonable attorney's fees and reasonable costs of
litigation, damage(s) or liability of any nature whatsoever, for
death or injury to any person, including Architect's employees
and agents, or for damage to, or destruction of, any property
of third persons, in any manner to the extent caused by the
negligent acts or omissions in performance of the professional
services under this Agreement on the part of Architect.
A policy of professional liability insurance shall be provided on
a per occurrence basis with a single limit liability in the amount
of two million ($2,000,000) dollars bodily injury and property
damage including coverages for contractual liability, personal
injury, independent contractors, broad form property damage,
products and completed operations.
Section 5.3 Performance Bonds are hereby waived.
With the above clarifications,which we have previously agreed to with otherfirms,the
contract can be quickly finalized and executed so that work may immediately begin;
any delay could make the December 2004 opening impossible. Staff hopes to have
a complete set of contract exhibits fully negotiated prior to the City Council meeting.
ALLEN F. SMOOT, AAE HAROLD E. GOOD, CPPO
Executive Director-Airports Director Procurement & Contracting
APPROVE �r` r�
City Manager /
ATTACHMENTS: J
1. Minute Order (at meeting)
2. Contract Exhibits (at meeting)
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DATE: December 18, 2002
TO: City Council
FROM: Executive Director—Airports
SUPPLEMENTAL REPORT— ITEM #13
Staff has negotiated the attached agreement with the project architect. The contract
covers all of the normal design and construction period work necessary to complete
a renovation/expansion of the Convention Center. To that, we have added a work
item for analyzing the master plan and developing a desirable alternative utilizing all
the property currently controlled by the City; we have asked to include special
consultants for seismic upgrade of the existing building, audio-visual equipment
selection, communication equipment selection and food serve equipment selection
and others. We have also asked that the contract incorporate the required civil
engineering for offsite realignments/utilities.
In trying to develop the proper fee for this work, staff talked with other firms, reviewed
other projects and compared this project to the most recent comparable City project,
the Airport's Sonny Bono Concourse Expansion. The Bono Concourse Project, once
completed, had a total architectural fee equal to just over 12.6%of construction cost.
That project did not include any of the specialty consultants listed below, nor did it
include refining a master plan or carrying the civil engineering work.
A breakdown/comparison of the Fentress Bradburn Architects proposed contract is
as follows:
Total Design Budget
(including reimbursables and
specialty consultant budget allocations) $2,982,543.
Less Speciality Consultant Studies
Existing Seismic (55,000.)
Audio Visual Expert (33,000.)
IT/Communication (27,500.)
Food Service (16,500.)
Code (28,500.)
Security (38,000.)
Transportation (55,000.)
Less Master Plan Analysis (44,043.)
Less Civil Engineering (165,000.)
Base Design Fee $2,520,000.
On a $20 million construction project, the base fee equates to 12.6% of construction
cost, which is the same as the final fee on the Airport Terminal Expansion.
Sit 1314
Supplemental Report Item #13
December 18, 2002 - Page Two
The Specialty Studies are budget allocations which will be carried in the contract, but
will only be activated if the work is necessary. As an example — Existing Seismic—
would only be activated if during design there is a code requirement to upgrade any
of the existing structure. All the Specialty Studies would be billed at Time and
Materials.
The attached contract is offered for City Council approval so that design may
commence immediately. Funding for this work will come from the upcoming Bond
Issue and setting up the accounts will be on the January 2, 2003 Council meeting.
1 t —
ALLEN F. SMOOT, AE
Executive Director—Airports
APPROVED.=__�
City Manager
ATTACHMENTS:
1. Minute Order
2. Contract
REVIEWED BY DEPI OF FINANCE
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CITY OF PALM SPRINGS
CONTRACT SERVICES AGREEMENT FOR
ARCHITECTURAL DESIGN SERVICES
THIS CONTRACT SERVICES AGREEMENT (herein "Agreement"), is
made and entered into this day of 2002, by and between
the CITY OF PALM SPRINGS, a municipal corporation, (herein "City") and
FENTRESS BRADBURN ARCHITECT LTD (FBA) (herein "Architect"). (The
term Architect includes professionals performing in a consulting capacity.) The
parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and
conditions of this Agreement, the Architect shall provide those services specified
in the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein
by this reference, which services may be referred to herein as the "services" or
"work" hereunder. As a material inducement to the City entering into this
Agreement, Architect represents that it is experienced in performing the work and
services contemplated herein, and that it can and will at all times perform
hereunder in a first class, professional manner, meaning that Architect's services
shall be satisfied in accordance with standards of practice recognized for
architectural firms of similar size, quality, experience and expertise as Architect,
performing similar work under similar circumstances.
1.2 Architect's Proposal. The Scope of Service shall include the
Architect's proposal or bid which shall be incorporated herein by this reference as
though fully set forth herein. In the event of any inconsistency between the terms
of such proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall
be provided in accordance with all applicable ordinances, resolutions, statutes,
rules, and regulations of the City and any Federal, State or local governmental
agency having jurisdiction in effect at the time service is rendered.
1.4 Licenses Permits Fees and Assessments. Architect shall
obtain at its sole cost and expense such professional licensees, permits and
approvals as may be required by law to perform the professional services
required of Architect by this Agreement. Architect shall assist the general
contractor in, but not be responsible for, obtaining building permits. Architect
shall have the sole obligation to pay for any fees, assessments and taxes, plus
applicable penalties and interest, which may be imposed by law and arise from or
are necessary for the Architect's performance of the services required by this
Agreement, and shall indemnify, defend and hold harmless City against any such
fees, assessments, taxes penalties or interest levied, assessed or imposed
against City hereunder.
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1.5 Familiarity with Work. By executing this Contract, Architect
represents that Architect (a) has thoroughly investigated and considered the
scope of services to be performed, (b) has carefully considered how the services
should be performed, and (c) fully understands the facilities, difficulties and
restrictions attending performance of the services under this Agreement. If the
services involve work upon any site, Architect represents that Architect has or will
investigate the site and is or will be fully acquainted with the conditions there
existing, prior to commencement of services hereunder. Should the Architect
discover any latent or unknown conditions, which will materially affect the
performance of the services hereunder, Architect shall immediately inform the
City of such fact and shall not proceed except at Architect's risk until written
instructions are received from the Contract Officer.
1.6 Care of Work. The Architect, its employees, consultants and
subcontractors shall adopt reasonable methods during the life of the Agreement
to furnish continuous protection to Architect's work, materials, papers,
documents, plans, studies and/or other instruments of Architect's services to
prevent losses or damages, and shall be responsible for all such damages, to
persons or property, until acceptance of the work by City, except such losses or
damages as may be caused by City's or its employees, other contractors or other
consultants, or its own negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use
reasonable care and diligence to perform their respective obligations under this
Agreement. Both parties agree to act in good faith to execute all instruments,
prepare all documents and take all actions as may be reasonably necessary to
carry out the purposes of this Agreement. Unless hereafter specified, neither
party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time
during the performance of the services, without invalidating this Agreement, to
order extra work beyond that specified in the Scope of Services or make changes
by altering, adding to or deducting from said work. No such extra work may be
undertaken unless a written order is first given by the Contract Officer to the
Architect, incorporating therein any adjustment in (i) the Contract Sum, and/or (ii)
the time to perform this Agreement, which said adjustments are subject to the
written approval of the Architect. Any increase in compensation of up to five
percent (5%) of the Contract Sum or $25,000; whichever is less, or in the time to
perform of up to one hundred eighty (180) days may be approved by the Contract
Officer. Any greater increases, taken either separately or cumulatively must be
approved by the City Council. It is expressly understood by Architect that the
provisions of this Section shall not apply to services specifically set forth in the
Scope of Services or to those services that are reasonably necessary for the
completion of the services within the Scope of Services. Architect hereby
acknowledges that it accepts the risk that the services to be provided pursuant to
the Scope of Services may be more costly or time consuming than Architect
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anticipates and that Architect shall not be entitled to additional compensation
therefore.
1.9 Special Requirements. Additional terms and conditions of
this Agreement, if any, which are made a part hereof are set forth in the "Special
Requirements" attached hereto as Exhibit "B" and incorporated herein by this
reference. In the event of a conflict between the provisions of Exhibit "B" and any
other provisions of this Agreement, the provisions of Exhibit "B" shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this
Agreement, the Architect shall be compensated in accordance with the "Schedule
of Compensation" attached hereto as Exhibit "C" and incorporated herein by this
reference, but not exceeding the maximum contract amount of
($ ) "Contract
Sum"), except as provided in Section 1.8. The method of compensation may
include: (i) a lump sum payment upon completion, (ii) payment in accordance
with the percentage of completion of the services, (iii) payment for time and
materials based upon the Architect's rates as specified in the Schedule of
Compensation, but not exceeding the Contract Sum or (iv) such other methods
as may be specified in the Schedule of Compensation. Compensation may
include reimbursement for actual and necessary expenditures for reproduction
costs, telephone expense, transportation expense approved by the Contract
Officer in advance, and no other expenses and only if specified in the Schedule
of Compensation. The Contract Sum shall include the attendance of Architect at
all project meetings that Architect is reasonably notified of and that are
reasonably deemed necessary,by the Contract Officer, the Project Manager or
the City Manager; Architect shall not be entitled to any additional compensation
for attending said meetings.
2.2 Method of Payment. Unless some other method of payment
is specified in the Schedule of Compensation, in any month in which Architect
wishes to receive payment, no later than the first (1st) working day of such
month, Architect shall submit to the City in the form approved by the City's
Director of Finance, an invoice for services rendered prior to the date of the
invoice. Except as provided in Section 7.3, City shall pay Architect for all
expenses stated thereon which are approved by City pursuant to this Agreement
no later than the last working day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance
of this Agreement and Architect understands that it shall perform its services in a
prompt and efficient manner pursuant to the terms hereof.
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3.2 Schedule of Performance. Architect shall commence the
services pursuant to this Agreement upon receipt of a written notice to proceed
and shall perform all services within the time period(s) established in the
"Schedule of Performance" attached hereto as Exhibit "D", if any, and
incorporated herein by this reference. When requested by the Architect,
extensions to the time period(s) specified in the Schedule of Performance may
be approved in writing by the Contract Officer but not exceeding one hundred
eighty (180) days cumulatively.
3.3 Force Maleure. The time period(s) specified in the Schedule
of Performance for performance of the services rendered pursuant to this
Agreement shall be extended because of any delays due to unforeseeable
causes beyond the control and without the fault or negligence of the Architect,
including, but not restricted to, acts of God or of the public enemy, unusually
severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions,
riots, strikes, freight embargoes, wars, litigation, and/or acts of any governmental
agency, including the City, if the Architect shall within ten (10) days of the
knowledge of such delay notify the Contract Officer in writing of the causes of the
delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the period of the enforced delay
when and if in the judgment of the Contract Officer such delay is justified. The
Contract Officer's determination shall be final and conclusive upon the parties to
this Agreement. In no event shall Architect be entitled to recover damages
against the City for any delay in the performance of this Agreement, however
caused, Architect's sole remedy being extension of the Agreement pursuant to
this Section.
3.4 Term. Unless earlier terminated in accordance with Section
7.8 of this Agreement, this Agreement shall continue in full force and effect until
completion of the services but not exceeding two (2) years from the date hereof,
except as otherwise provided in the Schedule of Performance (Exhibit "D").
4.0 COORDINATION OF WORK
4.1 Representative of Architect. The following principals of
Architect are hereby designated as being the principals and representatives of
Architect authorized to act in its behalf with respect to the work specified herein
and make all decisions in connection therewith:
Michael O. Winters, AIA as Principal in Charge
John Kudrycki as Project Manager
FENTRESS BRADBURN ARCHITECTS LTD
421 Broadway
Denver, Colorado 80203
It is expressly understood that the experience, knowledge, capability and
reputation of the foregoing principals were a substantial inducement for City to
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enter into this Agreement. Therefore, the foregoing principals shall be
responsible during the term of this Agreement for directing all activities of
Architect and devoting sufficient time to personally supervise the services
hereunder. For purposes of this Agreement, the foregoing principals may not be
replaced nor may their responsibilities be substantially reduced by Architect
without the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be such person
as may be designated by the City Manager of City. It shall be the Architect's
responsibility to assure that the Contract Officer is kept informed of the progress
of the performance of the services and the Architect shall refer any decisions
which must be made by City to the Contract Officer. Unless otherwise specified
herein, any approval of City required hereunder shall mean the approval of the
Contract Officer. The Contract Officer shall have authority to sign all documents
on behalf of the City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The
experience, knowledge, capability and reputation of Architect, its principals and
employees were a substantial inducement for the City to enter into this
Agreement. Therefore, Architect shall not contract with any other entity to
perform in whole or in part the services required hereunder without the express
written approval of the City. In addition, neither this Agreement nor any interest
herein may be transferred, assigned, conveyed, hypothecated or encumbered
voluntarily or by operation of law, whether for the benefit of creditors or
otherwise, without the prior written approval of City. Transfers restricted
hereunder shall include the transfer to any person or group of persons acting in
concert of more than twenty five percent (25%) of the present ownership and/or
control of Architect, taking all transfers into account on a cumulative basis. In the
event of any such unapproved transfer, including any bankruptcy proceeding, this
Agreement shall be void. No approved transfer shall release the Architect or any
surety of Architect of any liability hereunder without the express consent of City.
The City's policy is to encourage the awarding of subcontracts to persons
or entities with offices located within the jurisdictional boundaries of the City of
Palm Springs and, if none are available, to persons or entities with offices located
in the Coachella Valley ("Local Subcontractors"). Architect hereby agrees to use
good faith efforts to award subcontracts to Local Subcontractors, if Local
Subcontractors are qualified to perform the work required. In requesting for the
City to consent to a subcontract with a person or entity that is not a Local
Subcontractor, the Architect shall submit evidence to the City that such good faith
efforts have been made or that no Local Subcontractors are qualified to perform
the work. Said good faith efforts may be evidenced by placing advertisements
inviting proposals or by sending requests for proposals to selected Local
Subcontractors. The City may consider Architect's efforts in determining whether
it will consent to a particular subcontractor. Architect shall keep evidence of such
good faith efforts and copies of all contracts and subcontracts hereunder for the
period specified in Section 6.2.
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4.4 Independent Contractor. Neither the City nor any of its
employees shall have any control over the manner, mode or means by which
Architect, its agents or employees, perform the services required herein, except
as otherwise set forth herein. City shall have no voice in the selection,
discharge, supervision or control of Architect's employees, servants,
representatives or agents, or in fixing their number, compensation or hours of
service. Architect shall perform all services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent
contractor with only such obligations as are consistent with that role. Architect
shall not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City. City shall not in any way or for any
purpose become or be deemed to be a partner of Architect in its business or
otherwise or a joint venturer or a member of any joint enterprise with Architect.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Architect shall procure and maintain, at its
sole cost and expense, in a form and content satisfactory to City, during the
entire term of this Agreement including any extension thereof, the following
policies of insurance:
(a) Comprehensive General Liability Insurance. A policy of
comprehensive general liability insurance written on a per occurrence basis. The
policy of insurance shall be in an amount not less than either (i) a combined
single limit of $1,000,000 for bodily injury, death and property damage or (ii)
bodily injury limits of $500,000 per person, $1,000,000 per occurrence and
$1,000,000 products and completed operations and property damage limits of
$500,000 per occurrence. If the Contract Sum is greater than $100,000, the
policy of insurance shall be in an amount not less than $2,000,000 combined
single limit.
(b) Worker's Compensation Insurance. A policy of worker's
compensation insurance in such amount as will fully comply with the laws of the
State of California and which shall indemnify, insure and provide legal defense for
both the Architect and the City against any loss, claim or damage arising from
any injuries or occupational diseases occurring to any worker employed by or
any persons retained by the Architect in the course of carrying out the work or
services contemplated in this Agreement.
(c) Automotive Insurance. A policy of comprehensive
automobile liability insurance written on a per occurrence basis in an amount not
less than either (i) bodily injury liability limits of $500,000 per person and
$1,000,000 per occurrence and property damage liability limits of $250,000 per
occurrence and $500,000 in the aggregate or (ii) combined single limit liability of
$1,000,000, Said policy shall include coverage for owned, non-owned, leased
and hired cars.
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(d) Additional Insurance. Policies of such other insurance,
including professional liability insurance, as may be required in the Special
Requirements.
All of the above policies of insurance shall be primary insurance and shall
name the City, its officers, employees and City Attorneys' office as additional
insureds, except that the City shall not be named as an additional insured for the
Worker's Compensation Insurance nor the Professional Liability Insurance. The
insurer shall waive all rights of subrogation and contribution it may have against
the City, its officers, employees and agents and their respective insurers. All of
said policies of insurance shall provide that said insurance may not be amended
or canceled without providing thirty (30) days prior written notice by registered
mail to the City. In the event any of said policies of insurance are canceled, the
Architect shall, prior to the cancellation date, submit new evidence of insurance
in conformance with this Section 5.1 to the Contract Officer. No work or services
under this Agreement shall commence until the Architect has provided the City
with Certificates of Insurance or appropriate insurance binders evidencing the
above insurance coverages and said Certificates of Insurance or binders are
approved by the City.
Except for the Worker's Compensation and Professional Liability
Insurance, all certificates shall name the City as additional insured (providing the
appropriate endorsement), be signed by an authorized agent of the insurer, and
shall contain the following "cancellation" notice:
"CANCELLATION: Should any of the above described policies be
cancelled before the expiration date thereof, the issuing company shall
mail an advance 30-day written notice to the Certificate holder named
herein."
The Architect agrees that the provisions of this Section 5.1 shall not be
construed as limiting in any way the extent to which the Architect may be held
responsible for the payment of damages to any persons or property resulting
from the Architect's activities or the activities of any person or persons for which
the Architect is otherwise responsible.
In the event the Architect subcontracts any portion of the work in
compliance with Section 4.3 of this Agreement, the contract between the
Architect and such subcontractor shall require the subcontractor to maintain the
same policies of insurance that the Architect is required to maintain pursuant to
this Section 5.1.
5.2 Indemnification. See Exhibit "B".
5.3 Performance Bond. See Exhibit "B".
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5.4 Sufficiency of Insurer or Surety. Insurance or bonds required
by this Agreement shall be satisfactory only if issued by companies qualified to
do business in California, rated "A" or better in the most recent edition of Best
Rating Guide, The Key Rating Guide or in the Federal Register, and only if they
are of a financial category Class VII or better, unless such requirements are
waived by the City Manager or designee of the City ("City Manager") due to
unique circumstances. In the event the City Manager determines that the work
or services to be performed under this Agreement creates an increased or
decreased risk of loss to the City, the Architect agrees that the minimum limits of
the insurance policies and the performance bond required by this Section 5 may
be changed accordingly upon receipt of written notice from the City Manager or
designee; provided that the Architect shall have the right to appeal a
determination of increased coverage by the City Manager to the City Council of
City within ten (10) days of receipt of notice from the City Manager.
6.0 REPORTS AND RECORDS
6.1 Reports. Architect shall periodically prepare and submit to
the Contract Officer such reports concerning the performance of the services
required by this Agreement as the Contract Officer shall require. Architect hereby
acknowledges that the City is greatly concerned about the cost of work and
services to be performed pursuant to this Agreement. For this reason, Architect
agrees that if Architect becomes aware of any facts, circumstances, techniques,
or events that may or will materially increase or decrease the cost of the work or
services contemplated herein or, if Architect is providing design services, the cost
of the project being designed, Architect shall promptly notify the Contract Officer
of said fact, circumstance, technique or event and the estimated increased or
decreased cost related thereto and, if Architect is providing design services, the
estimated increased or decreased cost estimate for the project being designed.
6.2 Records. Architect shall keep, and require subcontractors to
keep, such books and records as shall be necessary to perform the services
required by this Agreement and enable the Contract Officer to evaluate the
performance of such services. The Contract Officer shall have reasonable
access to such books and records at all times during normal business hours of
City, including the right to inspect, copy, audit and make records and transcripts
from such records. Such records shall be maintained for a period of three (3)
years following completion of the services hereunder, and the City shall have
access to such records in the event any audit is required.
6.3 Ownership of Documents. City acknowledges the drawings,
specifications and other documents prepared by Architect, its employees,
subcontractors and consultants pursuant to this Agreement are instruments of
professional service ('Instruments"). Upon payment in full of all undisputed
monies due architect, the Instruments shall become the property of City.
Architect shall have no claim for further employment or additional compensation
as a result of the exercise by City of its full rights of ownership of the Instruments;
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provided, however, that any modification of the Instruments or use for other
projects for which Architect is not retained and does not provide professional
services shall be at City's sole risk and without liability to Architect, and shall
require the removal of Architect's title block and indicia from the Instruments
unless otherwise agreed in writing by Architect. City shall indemnify and hold
harmless Architect, its officers, directors and employees from and against any
loss, damage, liability, claims, demands, suits and expenses, including but not
limited to reasonable attorneys' fees and costs, resulting from use of the
Instruments as aforementioned, without agreement in writing from Architect.
6.4 Release of Documents. The drawings, specifications,
reports, records, documents and other materials prepared by Architect in the
performance of services under this Agreement shall not be released publicly
without the prior written approval of the Contract Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 Interpretation; California Law. This Agreement shall be
construed and interpreted both as to validity and to performance of the parties in
accordance with the laws of the State of California, as prepared by both parties
hereto. Legal actions concerning any dispute, claim or matter arising out of or in
relation to this Agreement shall be instituted in the Superior Court of the County
of Riverside, State of California, or any other appropriate court in such county,
and Architect covenants and agrees to submit to the personal jurisdiction of such
court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this
Agreement, the injured party shall notify the injuring party in writing of its
contentions by submitting a claim therefor. The injured party shall continue
performing its obligations hereunder so long as the injuring party commences to
cure such default within ten (10) days of service of such notice and completes
the cure of such default within forty-five (45) days after service of the notice, or
such longer period as may be permitted by the injured party; provided that if the
default is an immediate danger to the health, safety and general welfare, such
immediate action may be necessary. Compliance with the provisions of this
Section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's
right to take legal action in the event that the dispute is not cured, provided that
nothing herein shall limit City's or the Architect's right to terminate this Agreement
without cause pursuant to Section 7.8.
7.3 Retention of Funds. Architect hereby authorizes City to
deduct from any amount payable to Architect (whether or not arising out of this
Agreement) (i) any amounts the payment of which are in dispute hereunder or
which are necessary to compensate City for any losses, costs, liabilities, or
damages suffered by City, and (ii) all amounts for which City may be liable to
third parties, by reason of Architect's acts or omissions in per-forming or failing to
CC FBA.agr -9-
perform Architect's obligation under this Agreement. In the event that any claim is
made by a third party, the amount or validity of which is disputed by Architect, or
any indebtedness shall exist which shall appear to be the basis for a claim of lien,
City may withhold from any payment due, without liability for interest because of
such withholding, an amount sufficient to cover such claim. Notwithstanding
anything in this Agreement to the contrary, Architect does not waive, relinquish or
release any claims or rights it may have to any amounts deducted hereunder,
and shall be entitled to seek recourse for collection against City for any amounts
deducted (i) the payment of which should not have been disputed and/or (ii) are
not necessary to compensate City for any losses, costs, liabilities or damages,
either suffered by City or for which City is liable to third parties, by reason of
Architect's acts or omissions in connection with this Agreement. The failure of
City to exercise such right to deduct or to withhold shall not, however, affect the
obligations of the Architect to insure, indemnify, and protect City as elsewhere
provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or
remedy by a nondefaulting party on any default shall impair such right or remedy
or be construed as a waiver. A party's consent to or approval of any act by the
other party requiring the party's consent or approval shall not be deemed to
waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other
provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect
to rights and remedies expressly declared to be exclusive in this Agreement, the
rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at
the same or different times, of any other rights or remedies for the same default
or any other default by the other party.
7.6 Legal Action. In addition to any other rights or remedies,
either party may take legal action, in law or in equity, to cure, correct or remedy
any default, to recover damages for any default, to compel specific performance
of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other
remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damaqes. Since the determination of actual
damages for any delay in performance of this Agreement would be extremely
difficult or impractical to determine in the event of a breach of this Agreement, the
Architect and its sureties shall be liable for and shall pay to the City the sum of
Zero Dollars ($ -0-) as liquidated damages for each working day of delay in the
performance of any service required hereunder, as specified in the Schedule of
Performance (Exhibit "D"). The City may withhold from any monies payable on
account of services performed by the Architect any accrued liquidated damages.
CC FBA.agr -1 0-
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7.8 Termination Prior to Expiration Of Term. This Section shall
govern any termination of this Agreement except as specifically provided in the
following Section for termination for cause. The City reserves the right to
terminate this Agreement at any time, with or without cause, upon thirty (30)
days' written notice to Architect, except that where termination is due to the fault
of the Architect, the period of notice may be such shorter time as may be
determined by the Contract Officer. In addition, the Architect reserves the right to
terminate this Agreement at any time upon, with or without cause, upon sixty (60)
days' written notice to City, except that where termination is due to the fault of the
City, the period of notice may be such shorter time as the Architect may
determine. Upon receipt of any notice of termination, Architect shall immediately
cease all services hereunder except such as may be specifically approved by the
Contract Officer. Except where the Architect has initiated termination, the
Architect shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the
Contract Officer thereafter in accordance with the Schedule of Compensation or
such as may be approved by the Contract Officer, except as provided in Section
7.3. In the event the Architect has initiated termination, the Architect shall be
entitled to compensation only for the reasonable value of the work product
actually produced hereunder. In the event of termination without cause pursuant
to this Section, the terminating party need not provide the non-terminating party
with the opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Architect. If termination is due to
the failure of the Architect to fulfill its obligations under this Agreement, City may,
after compliance with the provisions of Section 7.2, take over the work and
prosecute the same to completion by contract or otherwise, and the Architect
shall be liable to the extent that the total cost for completion of the services
required hereunder exceeds the compensation herein stipulated (provided that
the City shall use reasonable efforts to mitigate such damages), and City may
withhold any payments to the Architect for the purpose of set-off or partial
payment of the amounts owed the City as previously stated.
7.10 Attorneys' Fees. If either party to this Agreement is required
to initiate or defend or made a party to any action or proceeding in any way
connected with this Agreement, the prevailing party in such action or proceeding,
in addition to any other relief which may be granted, whether legal or equitable,
shall be entitled to reasonable attorney's fees. Attorney's fees shall include
attorney's fees on any appeal, and in addition a party entitled to attorney's fees
shall be entitled to all other reasonable costs for investigating such action, taking
depositions and discovery and all other necessary costs the court allows which
are incurred in such litigation. All such fees shall be deemed to have accrued on
commencement of such action and shall be enforceable whether or not such
action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
CC RBA.agr
�d34 '3r
8.1 Non-liability of CitV Officers and EmploVees. No officer or
employee of the City shall be personally liable to the Architect, or any successor
in interest, in the event of any default or breach by the City or for any amount
which may become due to the Architect or to its successor, or for breach of any
obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of the City shall
have any financial interest, direct or indirect, in this Agreement nor shall any such
officer or employee participate in any decision relating to the Agreement which
effects his financial interest or the financial interest of any corporation,
partnership or association in which he is, directly or indirectly, interested, in
violation of any State statute or regulation. The Architect warrants that it has not
knowingly paid or given and will not pay or give any third party any money or
other consideration for obtaining this Agreement.
8.3 Covenant Against Discrimination. Architect covenants that,
by and for itself, its heirs, executors, assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry in the performance of this Agreement.
Architect shall take affirmative action so that applicants are employed and that
employees are treated during employment without regard to their race, color,
creed, religion, sex, marital status, national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent,
approval, or communication either party desires or is required to give to the other
party or any other person shall be in writing and either served personally or sent
by prepaid, first-class mail, in the case of the City, to the City Manager and to the
attention of the Contract Officer, CITY OF PALM SPRINGS, P.O. Box 2743, Palm
Springs, California 92263, and in the case of the Architect, to the person at the
address designated on the execution page of this Agreement. Either party may
change its address by notifying the other party of the change of address in
writing. Notice shall be deemed communicated at the time personally delivered
or in seventy-two (72) hours from the time of mailing if mailed as provided in this
Section.
9.2 Interpretation. The terms of this Agreement shall be
construed in accordance with the meaning of the language used and shall not be
construed for or against either party by reason of the authorship of this
Agreement or any other rule of construction which might otherwise apply.
9.3 Integration; Amendment. It is understood that there are no
oral agreements between the parties hereto affecting this Agreement and this
Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements and understandings, if any, between the parties, and
CC PBA.agr -12-
/3q14Y
none shall be used to interpret this Agreement. This Agreement may be
amended at any time by the mutual consent of the parties by an instrument in
writing.
9.4 Severability. In the event that any one or more of the
phrases, sentences, clauses, paragraphs, or sections contained in this
Agreement shall be declared invalid or unenforceable by a valid judgment or
decree of a court of competent jurisdiction, such invalidity or unenforceability
shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or
sections of this Agreement which are hereby declared as severable and shall be
interpreted to carry out the intent of the parties hereunder unless the invalid
provision is so material that its invalidity deprives either party of the basic benefit
of their bargain or renders this Agreement meaningless.
9.5 Corporate Authority. The persons executing this Agreement
on behalf of the parties hereto warrant that (i) such party is duly organized and
existing, (ii) they are duly authorized to execute and deliver this Agreement on
behalf of said party, (iii) by so executing this Agreement, such party is formally
bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said
party is bound.
9.6 Hazardous Materials. City acknowledges that Architect has
no expertise in and is not being retained for the purposes of investigating,
detecting, abating, replacing, remediating or removing any items, products,
materials or processes containing hazardous substances. City hereby agrees to
bring no claim or suit for negligence, breach of contract, indemnity or any other
cause of action against Architect and/or its consultants arising out of the
presence in any property or structure that is the subject of services performed by
Architect, of asbestos, asbestos-related materials, or any other hazardous
substance, in any form whatsoever, as defined by the Environmental Protection
Agency or any other public authority. City further agrees to require the General
Contractor and/or its subcontractors to indemnify, defend and hold Architect, its
officers, directors, shareholders and employees harmless from and against any
such claims regarding the presence of hazardous substances in any property or
structure that is the subject of services performed by Architect.
9.7 Latent Conditions. Should the Work include any remodeling,
alteration or rehabilitation work, City understands and acknowledges that certain
design and technical decisions are made on assumptions based upon readily
available documents and visual observations of existing conditions. Architect
shall not perform any destructive testing or opening of any concealed portions of
the Work to ascertain its actual conditions. Should Architect's and/or its
consultants' assumptions, made in good faith, prove incorrect, City agrees that
Architect and its consultants shall not be held responsible for the performance of
the Work or for any additional work or costs required to correct any ensuing
problems based upon such good-faith assumptions.
CC FBA.agr -13-
3415'
9.8 Construction Means and Methods. Architect shall not have
control over or charge of and shall not be responsible for construction means,
methods, techniques, schedules, sequences, procedures, fabrication,
procurement, shipment, delivery, receipt or installation, or for safety precautions
or programs in connection with the work provided by the construction contractor
or its subcontractors since such are solely the construction contractor's and its
subcontractor's responsibility under the contract for construction. Architect is not
responsible for the construction contractor's or its subcontractor's failure to carry
out the work in accordance with the Contract Documents.
[SIGNATURE PAGE FOLLOWS]
CC FBA.agr _14_
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as
of the date first written below.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
City Attorney
CONTRACTOR: Check one:_Individual_Partnership_Corporation
Corporations require two notarized signatures. One from each of the following: A. Chairman of Board, President,or any
Vice President.AND B Secretary,Assistant Secretary,Treasurer,Assistant Treasurer, or Chief Financial Officer)
By. By:
Signature (notarized) Signature (notarized)
Name: Name:
Title: Title:
State of �ll State of
County of 155 County of Iss
On before me, Personally On before me,
appeared Personally appeared
personally known to me (or proved to me on the basis of
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s)
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
on the instrument the person(s), or the entity upon behalf of which the person(s)acted,executed the instrument.
which the person(s)acted,executed the instrument.
WITNESS my hand and official seal.
WITNESS my hand and official seal
Notary Signature. Notary Signature:
Notary Seal: Notary Seal:
CC FBA.agr -15-
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EXHIBIT "A"
SCOPE OF SERVICES
Architect shall provide a full range of professional architectural services in comiection with the
City's Convention Center Expansion. The Expansion shall be accommodated on property
currently controlled by the City and the design shall follow the Program outlined in the City's
Convention Center Master Plan (as may be reduced during the building program phase to meet
the City's budgeted dollars). The Architect's services shall include the following:
1. Program Confirmation
A. The Architect shall review the Owner's program information and meet with the
project stakeholders to confirm building area, type, size and quality level. The
Architect shall compile the gathered information in to a final program for the
Owner's approval. The Architect utilizing the approved final program will update
expansion program and the development plan in the Master Plan document and
provide a long range expansion block diagram.
2. Schematic Design
A. The Architect shall provide Schematic Design Documents based on the mutually
agreed upon program, schedule and budget for the Cost of the Work. The
docmments shall establish the conceptual design of the Project illustrating the
scale and relationship of the Project components. The schematic design
Docrnnents shall include a conceptual site plan and preliminary building plans,
sections and elevations. The Schematic Design Documents will include study
models, perspective sketches, electronic modeling or combinations of these media
Preliminary sections of major building systems and construction materials shall be
noted on the drawings or described in writing. The Architect shall submit to the
Owner up to 3 sets of Schematic Design Drawings for the Owner's approval.
Architect shall prepare, compile and submit a Planned development District
Application to the Palm Springs Planning Commission. As part of the
application, Architect shall coordinate with City Environmental Consultant for
this project and shall provide a parking management plan and view corridor
electronic modeling.
3. Design Development
A. The Architect shall provide Design Development Documents based on the
approved Schematic Design Documents and updated budget for the Cost of the
Work. The design Development documents shall illustrate and describe the
refinement of the design of the Project, establishing the scope, relationships,
forms, size and appearance of the project by means of plans, sections and
elevations, typical construction details, and equipment layouts. The Design
Development Documents shall include specifications that identify major materials
and systems and establish in general their quality levels. The Architect shall
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summit to the Owner up to 3 sets of design development design drawings and
specifications for the Owner's approval.
4. Contract Documents
The Architect shall provide Contract Documents based on the approved design
development documents and updated budget for the Cost of the Work in CSI format. The
Contract Documents shall set forth in detail the requirements for construction of the
Project. The Contract Documents shall include Drawings and Specifications that
establish in detail the quality levels of materials and systems required for the Project.
The Architect shall prepare a maximum of 5 bid packages to facilitate a "fast track"
construction procurement process. The Architect shall submit to the Owner up to 3 sets
of contract documents drawings and specifications for the Owner's approval.
5. Contract Administration Services
A. GENERAL ADMINISTRATION
(1) The Architect's responsibility to provide the Contract Administration
Services under this Agreement commences with the award of the initial Contract
for Construction and terminates at the issuance to the Owner of the final
Certificate for Payment. However, the Architect shall be entitled to Additional
Services in accordance with Article 1.8 when Contract Administration Services
extend 60 days after the date of Substantial Completion of the Work.
(2) The Architect shall be a representative of and shall advise and consult with
the Owner during the provision of the Contract Administration Services. 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.
(3) Duties, responsibilities and limitations of authority of the Architect under
this Article D shall not be restricted, modified or extended without written
agreement of the Owner and Architect with consent of the Contractor, which
consent will not be unreasonably withheld.
(4) The Architect shall review properly prepared, timely requests by the
Contractor for additional information about the Contract Documents. A properly
prepared request for additional information about the Contract Documents shall
be in a form prepared or approved by the Architect and shall include a detailed
written statement that indicates the specific Drawings or Specifications in need of
clarification and the nature of the clarification requested.
(5) If deemed appropriate by the Architect, the Architect shall on the Owner's
behalf prepare, reproduce and distribute supplemental Drawings and
Specifications in response to requests for information by the Contractor.
B. EVALUATIONS OF THE WORK
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1) The Architect, as a representative of the Owner, shall visit the site at
intervals appropriate to the stage of the Contractor's operations (1) to become
generally familiar with and to keep the Owner informed about the progress and
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 Documents. 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.
(2) The Architect shall report to the Owner known deviations from the
Contract Documents and from 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.
(3) The Architect shall at all times have access to the Work wherever it is in
preparation or progress.
(4) 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.
(5) The Architect shall recommend to the Owner the rejection of Work that
does not conform to the Contract Documents. Whenever the Architect considers
it necessary or advisable, the Architect will 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.
(6) The Owner acknowledges that the Architect is not the "constriction
13000
manager" or "supervisor" of the Work, nor is the Architect a "clerk of the works."
If the Owner desires such services, they must be obtained from the Contractor or
others. In the event the Owner utilizes more than one contractor, the Architect
advises the Owner of the need to designate a party to coordinate the several
contractors. The Architect will accept such responsibility only through a separate
written agreement between the Owner and Architect. However, the Owner is
advised that unless a qualified party is retained to serve as a coordinator of
multiple contractors, delay to Project completion and claims for increased costs
by contractors and additional architectural services are likely.
C. SUBMITTALS
(1) The Architect shall review and approve or take other appropriate action
upon the Contractor's submittals such as Shop Drawings, Product Data and
Samples which are required to be submitted by the Contract Documents, 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 activities of the Owner, Contractor 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 other specifically stated by the Architect,
of any construction means, methods, techniques, sequences or procedures. The
Architect's approval of a specific item shall not indicate approval of an assembly
of which the item is a component.
(2) The Architect shall maintain a record of submittals and copies of
submittals supplied by the Contractor in accordance with the requirement so the
Contract Documents.
(3) 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 professionals' 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.
D. CHANGES IN THE WORK
(1) The Architect shall prepare Change Orders and Construction Change
Directives for the Owner's approval and execution in accordance with the
Contract Documents. The Architect may authorize through the Construction
Manager minor changes in the Work not involving an adjustment in Contract Stun
or an extension of the Contract Time which are consistent with the intent of the
Contract Documents. If necessary, the Architect shall prepare, reproduce and
distribute Drawings and Specifications to describe Work to be added, deleted or
modified.
(2) The Architect shall review properly prepared, timely requests by the
Owner or Contractor for changes in the Work, including adjustments to the
Contract Sum or Contract Time. A properly prepared request for a change in the
Work shall be accompanied by sufficient supporting data and information to
permit the Architect to make a reasonable determination without extensive
investigation or preparation of additional drawings or specifications. If the
Architect determines that requested changes in the Work are not materially
different from the requirements of the Contract Documents, the Architect may
issue an order for a minor change in the Work or recommend to the Owner that
the requested change be denied.
(3) If the Architect determines that implementation of the requested changes
would result in a material change to the Contract that may cause an adjustment in
the Contract Time or Contract Sum, the Architect shall make a reconnnendation
to the Owner, who may authorize further investigation of such change. Upon
such authorization, and based upon information furnished by the Contractor, if
any, the architect shall estimate the additional cost and time that might result from
such change, including any additional costs attributable to a Change in Services of
the Architect. With the Owner's approval, the Architect shall incorporate those
estimates into a Change Order or other appropriate documentation for the Owner's
execution or negotiation with the Contractor.
(4) The Architect shall maintain records relative to changes in the Work.
E. PROJECT COMPLETION
(1) The Architect shall conduct inspections to determine the date or dates of
Substantial Completion and the date of final completion, shall receive from the
Contractor and forward to the Owner, for the Owner's review and records, written
warranties and related documents required by the Contract Documents and
assembled by the Contractor, and shall issue a final Certificate for Payment based
upon a final inspection indicating the Work complies with the requirements of the
Contract Documents.
(2) The Architect's inspection shall be conducted with the Owner's Designated
Representative to check conformance of the Work with the requirements of the
Contract Documents and to verify the accuracy and completeness of the list
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submitted by the Contractor of Work to be completed or corrected.
(3) When the Work is found to be substantially complete, the Architect shall
inform the Owner about the balance of the Contract Surn remaining to be paid the
Contractor, including any amounts needed to pay for final completion or
correction of the Work.
(4) The Architect may receive from the Contractor which shall be promptly
forwarded to the Owner: (1) consent of surety or sureties, if any, to reduction in
or partial release of retainage or the making of final payment and (2) affidavits,
receipts, releases and waivers of liens or bonds indemnifying the Owner against
liens.
F. SCHEDULE OF ADDITIONAL SERVICES (Note: Architect shall immediately
notify owner or owner's representative prior to undertaking any of the following items to seek
authorization.)
(1) Design and Contract Administration Services beyond the following limits
shall be provided by the Architect as an Additional Service in accordance with
Paragraph 1.8:
a. up to two (2) reviews of each Shop Drawing, Product Data item, sample
and similar submittal of the Contractor.
b. more than bi-weekly visits to the site by the Architect over the duration of
the Project during construction.
C. up to two (2) inspections for any portion of the work to determine whether
such portion of the Work is substantially complete in accordance with the
requirements of the Contract Documents.
d. up to two (2) inspection for any portion of the Work to determine final
completion.
(2) The following Design and Contract Administration Services shall be
provided by the Architect as an Additional Service in accordance with Article 1.8:
a. review of a Contractor's submittal out of sequence from the submittal
scheduled agreed to by the Architect;
b. responses to the Contractor's requests for information where such
information is available to the Contractor from a careful study and
comparison of the Contract Documents, field conditions, other Owner-
provided information, Contractor-prepared coordination drawings, or prior
Project correspondence or documentation;
C. Change Orders and Construction Change Directives requiring extensive
evaluation of proposals, including the preparation or revision of
Instruments of Service;
d. providing consultation concerning replacement of Work resulting from
fire or other cause during construction;
e. evaluation of an extensive number of claims submitted by the Owner's
consultants, the Contractor or others in connection with the Work;
f. evaluation of substitutions proposed by the Owner's consultants or
contractors and making subsequent revisions to Instruments of Service
resulting therefrom;
g. preparation of design and documentation for alternate bid or proposal
requests proposed by the Owner; or
h. Contract Administration Services provided 60 days after the date of
Substantial Completion of the Work.
EXHIBIT "B"
SPECIAL REQUIREMENTS
Architect has been hired to perform the services described in the Agreement which include the
creation of one or more designs, drawings or plans ("Designs"). Architect acknowledges that
City has budgeted the amount of Twenty Million Dollars ($20,000,000) for the construction
phase of the Project ("Construction Budget"). Architect, utilizing Project estimates provided by
the City's Construction Management Firm (Turner Construction) to create Designs which will
enable the Project to be constructed within an amount which shall not exceed the Construction
Budget by more than ten percent (10%). Should City solicit bids for construction of the Project,
as such Project has been designed by Architect, and the lowest responsible bid exceeds the
Construction Budget by more than 10%, Architect agrees to revise the previous Designs, or to
create new Designs, so that a new price can be negotiated or the Project can be re-bid so that the
Project does not exceed the Construction Budget by more than 10%. Notwithstanding the
foregoing, Architect is not responsible for changes in the Project scope initiated by City and all
such changes shall include appropriate mutually agreed changes to the Construction Budget, as
are further set forth in Section 1.8 of this Agreement.
4.3 PROHIBITION AGAINST SUBCONTRACTING OR ASSIGNMENT
Architect may subcontract with M-E Engineers (Mechanical, Electrical and fire Protection
design services), Melendrez Design Partners (Landscape design services), The Crosby Group
(Structural Engineering services), Thomas Ricca Associates (Food Service design), and
Maineiro, Smith and Associates, Inc. (Civil Engineering services), and other specialty
consultants as required to complete the work subject to approval by the City's Project
Administrator.
5.2 INDEMNIFICATION this entire section is replaced with the following:
5.2.1 City Held Harmless—General Liability. Except for the sole negligence of City,
Architect undertakes and agrees to defend, indemnify and hold harmless City, and any and all of
City's Boards, officers, employees and successors in interest, from and against all suits and
causes of action, claims, losses, demands and expenses, including but not limited to, reasonable
attorneys' fees and reasonable costs of litigation, damages or liability of any nature whatsoever,
for death or injury to any person, including Architect's employees and agents, or for damage to,
or destruction of, any property of either party hereto, or of third persons, in any manner to the
extent arising by reasons of the acts or omissions in the performance of this Agreement on the
part of Architect, or any of Architect's subcontractors, employees, or anyone for whom Architect
has obligated itself under this contract, whether or not contributed to by any act or omission of
City or any of the City's Boards, officers or employees.
5.2.2 City Held Harmless—Professional Liability. Architect undertakes and agrees to
indemnify and hold harmless City, and any and all of City's Boards, officers and employees,
from and against all losses and expenses, including, but not limited to, reasonable attorneys' fees
and reasonable costs of litigation, damage(s) or liability of any nature whatsoever, for death or
injury to any person, including Architect's employees and agents, or for damage to, or
destruction of, any property of third persons, in any manner to the extent caused by the negligent
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acts or omissions in performance of the professional services under this Agreement on the part of
Architect.
A policy of professional liability insurance shall be provided on a claims made basis with a
single limit liability in the amount of Two Million Dollars ($2,000,000.00).
5.3 Performance Bonds are hereby waived.
New Section 10, 11 & 12 are hereby added to read as follows:
10. FAST TRACK. It is the Owner's intention to proceed with construction following the
selection of a Contractor and prior to the completion of the Contract Documents Phase;
therefore, it is the Owner's intention to utilize the "Fast Track" method of design and
construction of the Project. This method involves, in part, the incremental development of
Contract Documents by the Architect so that construction can proceed as criteria are established,
documented and approved by the Owner. The "Fast Track" method involves commencement of
construction on certain aspects of the Project before Contact Documents have been prepared for
the entire Project. The Owner recognizes that this method may benefit the Owner by reducing
the time required for construction of the Project, and thus permitting an earlier opening date.
However, the Owner acknowledges that once design recormnendations have been made by the
Architect, approved by the Owner and incorporated into the Construction Documents and
construction commences, any changes may cause extensive delays and increases in costs. The
Owner also acknowledges that this method presents risks of less control over the costs of
construction, increased costs of additional architectural services as compensation to the Architect
and less control over the final details of the design.
11. THE AMERICANS WITH DISABILITIES ACT (ADA). ADA requires the removal
of architectural barriers in existing facilities where such removal is readily achievable. The
Owner acknowledges that the definition of"readily achievable" contained in the ADA is flexible
and subject to interpretation on a case-by-case basis. The requirements of the ADA are subject
to various and possibly contradictory interpretations. Architect will use his reasonable
professional efforts and judgment to interpret applicable ADA requirements and to advise the
Owner as to the modifications to the Owner's facility that may be required to comply with the
ADA. Such interpretation and judgment will be based on what is known about ADA
interpretations at the time this service is rendered. Architect, however, cannot and does not
warrant or guaranty that the Owner's facility will fully comply with interpretations of ADA
requirements by regulatory bodies or court decisions.
12. ELECTRONIC FILES
12.1 The Architect disclaims all warranties with regard to the electronic database supplied
hereunder, including all implied warranties of fitness. The Architect disclaims all obligation or
liabilities for damages, including but not limited to consequential damages arising out of or in
comiection with the use or performance of the electronic database.
12.2 Due to the potential for modification or corruption, unintentional or otherwise, of
electronic information transferred to the Owner via any medium or mode, including but not
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limited to diskette, CD-rom, e-mail or ftp, the Owner agrees to release, indemnify and hold
harmless the Architect against all costs, damages, losses and liabilities, including reasonable
attorneys' fees and defense costs, arising out of the Owner's use of documents or other
information provided in this manner.
12.3 The Owner agrees that all copies of the Drawings, Specifications or other documents
made by the Owner from electronic media shall bear the statutory copyright notice shown on the
Drawings and Specifications furnished by the Architect.
12.4 Electronic files furnished by either party shall be subject to an acceptance period of 30
days during which the receiving party agrees to perform appropriate acceptance tests. The party
furnishing the electronic file shall correct any discrepancies or errors detected and reported
within the acceptance period. After the acceptance period, the electronic files shall be deemed to
be accepted and neither party shall have any obligation to correct errors or maintain electronic
files.
12.5 The Owner is aware that differences may exist between the electronic files delivered and
the printed hard copy Contract Documents. In the event of a conflict between the signed
Contract Documents prepared by the Architect and the electronic files, the signed or sealed hard
copy Contract Documents shall govern.
12.6 Both parties are aware that electronic media may not be suitable for long term archival
purposes due to natural deterioration of the media over time and the potential incompatibility
with future hardware and software upgrades.
12.7 At the Owner's request, the Architect shall provide electronic copies of the Instruments of
Service to the Contractor for the sole purpose of preparing submittal documents for the Project.
Prior to any such transmission of Instruments of Service in electronic form, the Owner shall
require the Contractor to execute a License, Indermnity and Warranty Agreement prepared by the
Architect.
12.8 Unless agreed otherwise, electronic data shall be provided in the following formats:
Specifications and Reports-Microsoft Word, latest version; Drawings-AutoCAD, latest version;
Spreadsheets-Microsoft Excel, latest version; Schedules-Microsoft Project, latest version.
12.9 Drawings shall be formatted using the Architect's standard layering convention, a copy of
which will be transmitted to the Owner upon request.
12.10 At the Owner's request, the Architect shall provide electronic copies of the appropriate
portions of the Instruments of Service to another design consultant for the sole purpose of
maintaining the Project through the preparation of tenant improvement documents for the
Project. Prior to any such transmission of Instruments of Service in electronic form, the Owner
shall require the design consultant to execute a License, Indemnity and Warranty Agreement
prepared by the Architect.
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EXHIBIT"C"
SCHEDULE OF COMPENSATION
Terms of Compensation. The services provided under this Agreement shall be performed for a lump
sum fee of$2,564,043, inclusive of reimbursable expenses as set forth herein. The fee breakdown
by design phase is as follows:
Program Confirmation $ 44,043
and Master Plan Update
Schematic Design $ 342,750
Design Development $ 465,000
Contract Documents $ 1,028,250
Contract Administration $ 449,000
Fee Subtotal $ 2,329,043
Reimbursable Expenses $ 235,000
TOTAL $ 2,564,043
Compensation for the sums shall be billed to the City on a monthly basis, based on the percentage
of work completed for each of the above categories; provided, however, that, without waiving
Section 7.3 of this Agreement, City shall have no obligation to make final payment of the Grand
Total above of $2,564,043 (the "Contract Stun") beyond the percentage of work completed by
Architect, and that City may withhold payments not to exceed ten percent (10%) of the Contract
Sum,pending a reasonable time for the verification that the items of work have been completed in
accordance with the Agreement. Reimbursable expenses shall be paid at cost plus 10%. Additional
allowances have been established for the following specialty consultants.
Consultant Total Fee (includes reimbursables)
Structural Upgrades (Existing) $55,000
Audio Visual Equip. Selection 33,000
IT/Communication Equip. 27,500
Food Services Layout 16,500
Code 28,500
Security 38,000
Transportation 55,000
Civil Engineering 165,000
During the design process, should any of the above specialties be needed, Architect shall seek
written approval from the City Project Administrator prior to activating said work. Compensation
shall be on a Time and Materials basis up to the above total itemized fee, including any
reimbursables.
The total sums billed by Architect to the City shall not exceed$3,057,273, inclusive of any and all
reimbursables expenses and Specialty Consultant work authorized by the City .
If the Scope of Services, as fully described in Exhibit "A", are changed, the Architect's
compensation shall be adjusted. Such adjustment shall be calculated first,by good faith negotiations
to arrive at a lump sum. If lump sum agreement cannot be reached,them the work shall be on a time
and materials basis utilizing the following billing rates:
Principals $230.00
Associate Principals $150.00
Senior Associates $130.00
Associates $125.00
Project Architects $120.00
Architects $70.00 - $100.00
Project Interior design Architects $100.00
Interior Designer $60.00 - $80.00
Draftsmen $55.00 - $60.00
Clerical $50.00 - $60.00
Information Technology $70.00
Model Shop $65.00
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
Program Confirmation On or before March 1, 2003
Schematic Design On or before April 1, 2003
Design Development On or before June 15, 2003
Contract Documents
Bid Package 1 -
(Demo/Facilities/Structural Steel) On or before September 1, 2003
Bid Package 2 -
(Completed Building) On or before October 30, 2003
Contract Administration
(2 months beyond Project Completion On or before February 28, 2004
It is understood that the foregoing Schedule of Performance is subject to all of the terms and
conditions set forth in the text of the Agreement. The surnnary of the items of performance in this
Schedule of Performance is not intended to supersede or modify the more complete description in
the text. It is further understood that this project will be"fast tracked"and will be constructed under
the "Construction Manager" approach. That is, Turner Construction, the Construction Manager,
will manage multiple trade contracts for the City to complete this project. In the event of any
conflict or inconsistency between this Schedule of Performance and the text of the Agreement,the
text shall govern.
13430
MINUTE ORDER NO.
APPROVING AN ARCHITECTURAL DESIGN
CONTRACT FOR THE SECOND PHASE
CONVENTION CENTER EXPANSION
PROJECT WITH FENTRESS BRADBURN
ARCHITECTS, LTD.
I HEREBY CERTIFY that this Minute Order approving an architectural design
contract for the Second Phase Convention Center Expansion Project with
Fentress Bradburn Architects, LTD, was adopted by the City Council of the
City of Palm Springs, California, in a meeting thereof held on the 18h of
December 2002.
PATRICIA A. SANDERS
City Clerk
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