Loading...
HomeMy WebLinkAbout00282C - KAPTUR CIOFFI ARCHITECTS PLAZA THEATER PA1B7 T- F11 E A M E A I C A N _ I N S T I T U T E 0 Kaptur & Cioffi , Architects ob JE.Plaza Theater Refurbish-PA187 ,AGREEMENT #282 R819, 10-2-91 ALA Document B151 Abbreviated Form of Agreement Between Owner and Architect for Construction Projects of Limited Scope 1987 EDITION THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AGREEMENT made as of the day of in the year of Nineteen Hundred and NINETY ONE BETWEEN the Owner: The City of Palm Springs , a municipal corporation, (Name and address) 3200 Tahquitz-Canyon Way Palm Springs , CA 92262 Attn: Director of Economic Development and the Architect: KAPTUR & CIOFFI, Architects , (Name and address) a California general partnership - 700 E. Tahquitz Way, Suite E Palm Springs, CA 92262 Attn: Mr. James Cioffi For the following Project: (Include detailed descrrpnorr of Project, lordric i. address and scope) See Page 1A The Owner and Architect agree as set forth below. Copyright 1974, 1978,©1987 by The Amencan Institum of Ardti[em,1735 New York Avon e,N.W.,Wuhingion,D.C.20006. Reproduction of the material herein or subsuntul quouuon of its provisions without written permission of the AIA vio6te5 the copyright lams of the United Suies and will be sublet to legal prosecution AIADOCUMENT0151 •ABBREVIATED OWNER.ARCHITECT AGREEMENT•THIRD EDITION•AU• •©1987 THE AMEAICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE,N W.,WASHINGTON.D C.20006 B151.1987 1 r The Architect shall provide professional services for the refurbishment of the Plaza Theater located at 128 South Palm Canyon Drive, Palm Springs, California, which services shall include the following: ( i) the removal of existing mechanical equipment from the basement of the theater and installing new replacement equipment on the roof of the theater; ( ii) verifying the structural integrity of the roof for said new equipment and provide required calculations for same; (iii) replacing the existing electrical service and vault, if necessary; ( iv) redesigning the basement of the theater for dressing rooms and new exits; (v) conversion of existing electrical room to a woman ' s handicapped restroom pursuant to code requirements and (vi) apply for and receive all necessary permits required for the Project. The parties are aware that the Plaza Theater contains asbestos and said asbestos is to be remediated by the City' s independent contractor . Architect shall have no responsibility for said remediation activities . The parties hereto are aware that the Plaza Theater is an existing structure and Architect has been able to review only limited drawings of the building provided by the City. The City acknowledges that there may be certain conditions in the building that are not reasonably discoverable by the Architect and that are not anticipated by the parties . Said conditions may require Architect to perform additional services to redesign the plans and Project . specifications for the -lA- 2/383/014084-0001/103 ETEESND CONDITIONS OF AGREEMENT BETWEEN OWNER AND ARCHITECT ARTICLE 1 2.4 CONSTRUCTION PHASE—ADMINISTRATION OF THE CONSTRUCTION CONTRACT ARCHITECT'S RESPONSIBILITIES revsde- for the Construction Phase under this Agrc51:n!t vfiences 1.1 ARCHITECT'S SERVICES with the award of the Contract for Cons n and terminates 1.1.1 The Architect's services consist of [hose services per- at the earlier of issuance to[h er of the final Certificate for Payment or 60 "S a dam of Substantial Completion of formed by the Architect,Architect's employees and Architect's the Wo m extended under the terms of Subparagraph consultants as enummted in Articles 2 and 3 of this Agreement See Page 2A and any other services included in Article 12. 1.1.2 The Architects services shall be performed as expedi- tract The Architect shall provide administration of the Con- tiously as is consistent with professional skill and care and the tract for DocConument X21, as set forth below and in the Contract of ALA Document A201, General Conditions of the Contract for orderly progress of the Work. Construction, current as of the date of this Agreement. 1_1 14 Zbe sc - ,v,,nd h; h •B " " b>"�— 2.4.3 Duties,responsibilities and limiutions of authorin.of the gho ltmc I . in c ph 11 c 1. Architect shall not be restricted,modified or extended without written agreement of the Owner and Architect with consent of the Contractor, which consent shall not be unre2son2bl} withheld. 2.4.4 The Architect shall be 2 representative of and shall adve� and consult with the Owner(1)during construction until Final payment to the Contractor is due and(2)as an Additional Ser- ARTICLE 2 vice at the Owner's direction from time to time during the cot SCOPE OF ARCHITECT'S BASIC SERVICES rection penod described in the Contract for COnstruction 2.4.5 The Architect shall visit the site at intervals approprate 2.1 DEFINITION to the stage of construction or as otherwise agreed by the Owner and Architect in writing to become generally familur 2.1.1. The Architect's Basic Services consist of those described with the progress and quality of the Work completed and to under the three phases identified below, any other services determine in general if the Work is being performed in a man identified in Article 12,and include normal sttvcwral,mechani- net indicating that the Work when completed will be in 2ccor cal and electrical engineering services dance with the Contract Documents. However, the Architect 2.2 DESIGN PHASE See Page 2A shall not be required to retake exhaustive or continuous on-site inspections to check the quality or quandry of the u ork Or 2.2.1 The Architect shall review with the Owner almlTutive the basis of on-site obsere owner vations Dawn architect, ogress and quc llecl of approaches to design and construction of the Project keep _ the Work, and shall endeavor to guard the Owner against 2.2.2 Based on the mutually 2grced-upon program, schedule defects and deficiencies in the Work. ('More awensife Site and construction budge[ requirements, the Architect shall representation rna-p be agreed to as an Additional Serene a, prepare, for approval by the Owner, Design Documents con- described in Paragrapb 3.2.) See//Page 2A sisung of drawings and other documents appropriate for the Project,and shall submit to the Owner 2 preliminary estimate of 2.4.6 The Architect shall not have control over or charge of Construction Cost and shall not be responsible for construction mans, methods techniques,sequences or procedures,or for safety prec2utiuro 2.3 CONSTRUCTION DOCUMENTS PHASE See Page and programs in connection with the Work, since these are �A solely the Contractor's responsibility under the Contract fur 2.3.1 Based on the approved Design Documents,the Arc itca Construction. The Architect shall not be responsible fur the Shall prepare, for approval by the Owner, Construction Docu- Contnaor's schedules or failure to carry out the 1\ork in ments consisting of Drawings and Specifications setting forth in accordance with the Contract Documents. The Architect shall detail the requirements for the construction of the Project and not have control over or charge of acts or omissions of the shall advise the Owner of any 2djusunen[s to previous Contractor, Subcontractors,or their agents or employees,or of preliminary estimates of Construction Cost. any other persons performing portions of the Work. 2.3.2 The Architect shall '.-Qe ^ "'•t=^^^ 2.4.7 The Architect shall at 2H times have 2eces5 to the u ork h n 'h'I'•y fG; MAS documents required for wherever it is in preparation or progress. the approval of governmental authorities having jurisdiction over the Project. 2.4.8 Based on the Architect's observ2dons and evaluations Of the Contractor's Applications for Payment, the Architect shall 2.3.3 Unless provided in Article 12, the Architect, following review and certify the amounts due the Contractor. the Owner's approval of the Construction Documents and of the latest preliminary estimate of Construction Cost,shall assist 2.4.9 The Architect's certification for payment shall constitute the Owner in obtaining bids or negotiated proposals and assist a representation to the Owner, based on the Architect's obscr- in awarding and preparing contracts for construction. v2tions at the site as provided in Subparagraph 2.4 5 and on the ALA DOCUMENT5151 •ABBREVIATEDO`a'NER ARCHITECT AGREEMENT-THIRD EDITION•AIA• •e1%7 THE AMERICA.N INSTITUTE OF ARCHITECTS, 1735 NE`F' YORK AVENUE,h`a',WASHI.NGTON. D C 20006 8151-1987 2 2 . 2 The Design Phase has commenced and has been completed prior to the execution of the Agreement. 2 . 3 The Construction Documents Phase shall commence upon the date the Owner approves the Design Phase Documents and shall terminate upon the date of the signing of the construction contract by the Contractor . 2 . 4.1 The Construction Phase shall commence upon the start of construction of the Project and shall terminate upon final completion. It is anticipated that the Construction Phase shall be performed in two phases . The first phase of the work is to be completed on or before December 15, 1991 . The second phase of the work is to be completed during 1992 . 2 . 4.5 . . .and shall notify the Owner in writing if any portion of the work is not in conformity with the requirements of the Construction Documents . -2A- r data comprising the Contractor's Application for Payment,that they shall be paid for by the Owner as provided in this Agree- the Work has progressed to the point indicated and that,to the went. Such Additkxul Services shall include, in addition to best of the Architect's knowkdgc, information and belief, those described in Paragraphs 3.2 and 3.3, budget analysis, quality of the Work is in accordance with the Contract Docu- fimrtchl feastbiliry snrdks; planning surveys, environmental orients. The issuance of a Cenlficate for Payment shall not be a studies, measured drawings of existing conditions, eoordiru- represerttadon that the Architect has (1) made exhaustive or Lion of separate eontnaors or independent consultants, coor- continuous on-sire inspections to check the quality or quantity dination of construction or project managers, detailed Con- of the Work,(2)reviewed construction means,methods,tech- swction Cost estimates,quantity surveys,interior design,plan- niques, sequences or procedures,(3)reviewed copies of requi- ning of terunr or rental spaces, inventories of materials or sitions received from Subcontractors and material suppliers and equipment,preparation of record drawings,and any other so- other data requested by the Owner to substantive the Contra- vices not otherwise included in this Agteernent under Basic Ser- tor's right to payment or(4)ascertained how or for what pur- vices or not customarily furnished in accordance with generally pose the Contractor has used money previously paid on accepted architectural practice. account of the Contract Sum. 3.2 if more externsive representation at the site than is 2.4.10 The Architect shall have authority to reject Work which described in Subparagraph 2.4.5 is required, such additional doers not conform to the Contra Documents and will have project representation stall be provided and paid for as set authority to require additional inspection or testing of the forth in Artic3cs 11 and 12. Work whenever, in the Architect's reasonable opinion, it is 3.3 As an Additional Service in connection with Chungc necessary or advisable for the implementation of the intent of Orders and Construction Change Directives, the Architect shall the Contract Documents. Drawings,S lions and other documenudon and Pic wings, pedfica 2.4.11 The Architect shall review and approve or take other data, evaluate Contractor's proposals, and provide any other appropriate action upon Contractor's submittals such as Shop services made necessary by such Change Orders and Consruc- Drawings, Produa Data and Samples, but only for the limited lion Change Direc-tiv-es. ; provided that the purpose of checking for conformance with information given cause of the Change Order or and the design concept expressed in the Contract Documents. Construction Change Directive is due The Arcluica's action shall be taken with such reasonable to an event beyond Architect ' s promptness us to cause no delay. The Architect's approval Of 2 control . spedfic item shall not indicate approval of an assembly of which the item is a component.When professional Certification of performance dunctenstics of materials, systems or equip- ARTICLE 4 menu is required by the Contra Documents, the Architect OWNER'S RESPONSIBILITIES shall be entitled to rely upon such certification to establish that the materials,systems or equipment will meet the performance criteria required by the Contract Documents. 4.1 The Owner shall provide frill Information,including a pro- gram which shall set forth the Owner's objectives, schedule, 2.4.12 The Architect shall prepare Change Orders and Con- constraints, budget with rasonuble contingencies,and criteru. struction Change Directives, with supporting documentation and data if authorized or confirmed In writing by the Owner as 4.2 The Owner shall furnish survevs describing physical char- provided in Pangnphs 3 1 and 3 3, for the Owner's approval aaeristics, legal limitations and utility locations for the site of and execution in accordance with the Contract Documents, the Project, a written legal description of the site and the ser- and may authorize minor changes in the Work not involving an vices of georechnical engineers or other consultants when such adjustment in the Contract Sum or an extension of the Contra services are requested by the Architect. Time which are not inconsistent with the intent of the Contra Documents. 4.3 The Owner shall furnish structural, mechanical, chemical. air and water pollution tests, tests for hazardous mvcra 5, and 2.4.13 The Architect shall conduct inspections to determine other laboratory and environmental tests, inspections and the dates of Substantial Completion and final completion and reports rcqu rcd by law or the Contra Documents. shall issue a final Certificate for Payment. 4.4 Thc Owner shall furnish all legal,accounting and insurance 2.4.14 -h- '^•_.. m 'R courseling services as may be necessary at any time for the Bening performance of the Owner and Contractor the Project, including auditing services the Owner may require to requirements of the Contract Documents on w request of verify'the Contractor's Applications for Pavmem or to ascertain either the Owner or Contractor. The ec's response to how or for what purposes the Contractor has used the money" such requests shall be made wi nabie promputess and paid by the Owner within any time limis 2W upon. When nuking such inter- 4.5 The foregoing services, information, surveys and reports pmtaLic s and ni " visions, the Architect shall endeavor to shall be hu-nished at the Owner's expense, and the Architect secure fai rfotmance by both Owner and Contractor, anal" be entitled to rely upon the accuracy and completeness shall ow partiality to either, and shall not be liable for hereof. See Page 3A 4.6 Prompt written notice shun be given by the Owner to the Architect if the Ow becomes aware of any fault or defect in ARTICLE 3 the Project or nonconformance with the Contract Documents. ADDITIONAL SERVICES 4.7 requested of the Arctuma or Afchit all Is shbe 3.1 Additional Services shall be provided if authorized or con- submitted to the r review and approval at least 14 firmed in writing by the Owner or if included in Article 12,and AU DOCUMENT 9151-ABBREVIATED OWNER ARCHITECT AGREEMENT-THIRD EDITION-AIA' •0198- 3 B1551-1987 THE A.MERIC .N INSTITUTE OF ARCHITECTS. 1'35 NEa YORK AVENUE,NIX ,V ASHINGTON,DC 20006 2 . 4 . 14. Resolution of Disputes. Architect shall give full and prompt attention and shall provide input and advice to the Owner as to methods for resolving any claims or controversies between or among the Architect, the City and/or the Contractor which arise during the course of construction of the Project and. relate to the execution or progress of the work or the interpretation of the Contract Documents . The Owner shall render final decisions with respect to said disputes; provided that the Architect may contest the dispute in a judicial proceeding after a final decision by the Owner is rendered. No litigation shall be commenced with respect to a dispute subject to this Section 2 . 4 .14 ninety ( 90 ) days after the inception of the dispute. In the event of any proceeding to resolve any claim which involved any act or omission of the Architect, the Architect shall be present and shall participate in such proceedings . 2 . 4 .15 Assistance with Start Up and Testing. Architect shall provide reasonable assistance with the utilization of any equipment or system under the Architect ' s design such as initial start up or testing, adjusting and balancing, review of operation and maintenance manuals , of the design parameter of the exterior enclosure, structural, electrical, vertical, transportation, mechanical, heating, ventilation, air conditioning, building automation, fire and life safety, and other systems of the Project; and orienta- tion of personnel for operation and maintenance . -3A- ARTICLE 5 ARTICLE 8 CONSTRUCTION COST USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER DOCUMENTS 5.1 DEFINITION See Page 4A 5.1 4e pi ^ sp@49 wig Athpis GQ 5.1.1 The Construction Cost shall be the total cos[ or esti- pared by the Architect for this Project are instruments o e mated cost to the Owner of all elements of the Project designed Architect's service for use solely with respect to this ject, or specified by the Architect. See Page 4A and the Architect shall be deemed the author of docu- 5.1.2 The Construction Cost shall include the cost at current merits and shall retain all common law, smuto and other market rates of labor and materials furnished by the Owner and reserved rights, including the copyright. The,- wrier shall be equipment designed, specified, selected or specially provided permitted to retain copies, including rep ua'ble copies, of for by the Architect, plus a reasonable allowance for the Con- the Architect's Drawings, Specifications d other documents tractor's overhead and profit. In addition, a reasonable allow- for information and reference in co coon with the Owner's ante for contingencies shall be included for market conditions use and occupancy of the Proje . The Architect's Drawings, at the time of bidding and for changes in the Work during Specifications or other d nts shall not be used by the construction. Owner or others on other jects,for additions to this Project or for completion of this roject by others,unless the Architect 5.1.3 Construction Cost does not include the compensation of is adjudged to be in fault under this Agreement, except bN the Architect and Architect's consultants,the costs of the land, agreement in wri ' and with appropriate compensation to the rights-of-way, financing or other costs which are the respon- Architect. sibibty of the Owner as provided in Article 4. 6.2 Sub ion or distribution of documents to meet official 5.2 RESPONSIBILITY FOR CONSTRUCTION COST regular requirements or for similar purposes in connection wi a Project is not to be construed as publication in deroga- 5.2.1 It is recognized 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.Accord- ingly, the Architect cannot and does not warrant or represent ARTICLE 7 that bids or negotiated prices will not vary from any estimate of ARBITRATION Construction Cost or evaluation prepared or agreed to by the Architect. 5.2.2 No fixed limit of Construction Cost shall be established panes to this Agreement arising out of or relating 7Arbitm- agreedas a condition of this Agreement by the furnishing,proposal or merit or breach thereof shall be subject to and de establishment of a Project budget, unless a fixed limit has been tration in accordance with the Construction Ind upon in writing and signed by the parties hereto. Fixed tion Rules of the American Arbitration Associate limits, if any,shall be increased in the amount of an increase in effect unless the panics mutually' agree oth 'use. No arbitra- the Contract Sum occurring after execution of the Contract for tion arising out of or relating to this Agree ent shall include.be Construction. consolidation, joinder or in ant oth manner, an additional 5.2.3 ^' person or entity not a party to the greemen[,except b} writ- person ten consent containing a spec' reference to this .Agreement may be adjusted to reflect changes in the e of prices signed by the Owner,Archi ct,and any other person or enun in the construction industry t e date of submission of sought to be joined. CO eat to arbitration invoh'ing an addr the Constru umems to the Owner and the date on tionalZm � i shall not constitute consent to arbara- sGuEN [ion dispute or other matter in question not 5.2.4 descritem consent. The foregoing agreement tos - ^-_I the r,9'ReF 5arbitragreements [o arbitrate with an additional See Page 4A V ^^ persoly consented to by the patties to this Agrec 1 give written approval of an increase in such fixed mcally enforceable in accordance with appli- limit, .w,iag iu is roc-eti;<teoi. .2 authorize rebidding or renegotiating of the Project 72 I^ ^^ a Ont gh'I' '1s@ rem"Isd feF within a reasonable time; the date when institution of legal or equitable pre < rag .3 if the Project is abandoned, terminate in accordance based on such claim,dispute or other matter cation would with Paragraph S 3; or be barred by the applicable statut uni[aLions .4 cooperate in revising the Project scope and quality as required to reduce the Construction Cost. 7.3 The award rrn y the arbitrator or arbitrators shall be final,and' cn may be entered upon it in accordance with 5.2.5 If the Owner chooses to proceed tinder Clause 5.2.4.4, , the Architect,without additional charge,shall modify the Con- tract Documents as necessary to comply with the fixed linvt,Z e modification ARTICLE 8 of Contract Documents shall be the limit of the Architect's responsibility arising out of the establishment of a fixed limit. TERMINATION, SUSPENSION OR ABANDONMENT The Architect shall be entitled to compensation in accordance See Page 4A with this Agreement for all services performed whether or not 8.1 T ' the Construction Phase is commenced. �. less ,ti__Se e., a_, _FIR_„ MEHiEe-h„ a the 9ihGF...,.,. ALA DOCUMENT 5151 •ABBREVIATED OWNER-ARCHITECTAGREEMENT•THIRD EDITION•AIA• •©198' THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORA AVENUE,N W W'ASHINGTON,D C 20006 B151-1987 4 5 .1.1 The fixed limit for the Construction Cost of the Project is Three Hundred Thousand Dollars ( $300 ,000 . 00) 5 . 2.4 If the lowest bona fide bid or negotiated proposal is greater than one hundred ten percent (110% ) of the fixed limit of the Construction Cost, the Owner shall : 6 . 1 Ownership of Documents . All test data, survey results, models and renderings prepared by the Architect in connection with the performances of services under this Agreement are and shall remain the property of the Owner , including all copyrights, rights of reproduction and other interests relating thereto. Architect hereby assigns to the Owner all rights throughout the world in perpetuity in the nature of copyright, trademark, patent and rights to ideas in and to all versions of the plans and specifications now or later prepared by Architect in connection with the Project . The Architect agrees to refrain from taking any actions which would impair said rights . The Owner may reuse such documents for future work of the Project and for future projects provided that the Architect has been fully compensated for the Project according to the terms of this Agreement and, with respect to future projects, provided the Architect is indemnified against any liability that may occur as a result of such reuse. The Owner shall not refer to the Architect without its consent in any published materials referring to such other projects and it shall not permit parties other than the Owner to use such work. 8 . 1 Default . 8 . 1 . 1 Default By Architect. In the event ( i ) Architect fails to perform the services required pursuant to this Agreement within the times set forth herein; ( ii ) Architect, or any employee or agent of Architect, wrongfully files or records a lien against the Site or any property of the Owner or any agent or employee of Owner; ( iii ) Architect is declared to be bankrupt or insolvent, an assignment for the benefit of creditors is made by the Architect, the Architect files a voluntary petition in bankruptcy or insolvency, a receiver shall be appointed for Architect and such appointment or bankruptcy or insolvency proceedings, petition, declaration or assignment is not set aside within thirty ( 30 ) days; ( iv) any representation or certification made by Architect to the Owner shall prove to be materially false or misleading on the date said representation or certification is made; (v) a material default shall be made in the observance or performance of any covenant, agreement or condition contained in this Agreement required to be kept, performed or observed by Architect; (vi ) any of the policies -4A- of insurance required to be obtained by Architect are cancelled; or (vii ) Architect violates any laws, ordinances, rules , regulations or orders of any public authority in the performance of its duties pursuant to this Agreement; then, provided the event as described above is not cured within thirty ( 30) days after written notice from the Owner to Architect is given, the Owner may declare the Architect to be in default under this Agreement and exercise any remedies available to it . 8 .1. 2 Default By Owner . In the event the Owner shall fail to perform its obligations pursuant to this Agreement after thirty ( 30) days written notice from Archi- tect to the Owner is given, the Architect may declare the Owner to be in default hereunder and exercise any remedies available to it . 8. 2 Termination. 8 . 2. 1 Termination By Owner Due to Architect ' s Default . If Architect is in default under the provisions of this Agreement pursuant to Section 8 .1. 1 , the Owner may, without prejudice to any right or remedy and after giving Architect the written notice prescribed in Section 8 .1 . 1 hereof, terminate the employment of Architect and take possession of all plans, specifications, drawings and other data theretofore prepared by Architect with respect to the Project . Additionally, the Owner may pursue any action available to it to obtain relief for actual damages suffered by reason of defaults, failures or breaches of Architect hereunder and the Owner may withhold any payments to the Architect for the purpose of set off or partial payment of the amounts owed the Owner . 8 . 2 . 2 Termination By Architect Due To Owner ' s Default . Should the Owner default in its obligations here- under and should it fail to cure same within the period provided in Section 8 . 1 . 2 hereof, the Architect may terminate this Agreement . Upon such termination, the Architect may recover from the Owner full payment for all work performed to the date of such termination and all Reimbursable Expenses. 8 . 2 . 3 Termination By the Owner Without Cause . Upon thirty ( 30) days written notice, the Owner shall have the right to cancel and terminate this Agreement at any time whether or not a default exists hereunder and the Owner shall incur no liability to the Architect or any other person by reason of such cancellation. If the termination is for no fault of the Architect, the Owner shall pay the Architect all sums due under this Agreement as a percent of work completed effective as of the date of termination, all Reimbursable -4B- Expenses and for work authorized in writing by the Contract Administrator . 8 . 2 . 4 Transfers on Termination. In the event of termination pursuant to Section 8 . 2 . 3 of this Agreement, the Architect and the Owner shall forthwith return to the other all papers, materials and other properties of the other held by each. In addition, each party will assist the other in the orderly termination of this Agreement and the transfer of all aspects hereof, tangible and intangible as may be necessary for the orderly, nondisrupted business continuation of each party. In the event Architect does not complete all services contemplated hereunder for any reason, the Architect shall not be responsible for the services performed by others after termination of this Agreement, nor shall the Architect be responsible for the accuracy or workability of any incomplete plans , drawings or specifications prepared by the Architect. 8 . 3 Suspension. 8 . 3 . 1 The Owner may, in writing, order the Archi- tect to suspend all or any part of the Architect ' s services under this Agreement for the convenience of the Owner or for work stoppages beyond the control of the Owner, the Construc- tion Manager or the Architect . The parties understand that the Project is to be constructed in two phases . The construction of the Project in two phases shall not be deemed a suspension of this Agreement . 8 . 3 . 2 If the Project is so suspended by the Owner for more than three ( 3) months, the Architect shall be paid compensation for services performed prior to receipt of written notice of the suspension from the Owner, together with Reimbursable Expenses then due . If the Project is resumed after being suspended for more than six ( 6) months , the Architect shall have the option to require its compensation, including rates and fees, be renegotiated . Subject to the provisions of this Agreement relating to termination, a suspension of the Project does not void this Agreement. 8 . 4 Enforcement of Agreement . 8 . 4 . 1 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 -4C- shall not be a waiver of any other default concerning the same or any other provision of this Agreement . 8 . 4. 2 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. 8 . 4 . 3 California Law. This Agreement shall be construed and interpreted both as to validity and to perfor- mance of the parties in accordance with the laws of the State of California. 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. 8 . 4. 4 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 perfor- mance of this Agreement, to obtain declaratory or injunctive relief or to obtain any other remedy consistent with the purposes of this Agreement. -4D- Agreement through no fault of the party initiating the t of this Agreement.The er=_-___.__. ! sh:]o require mination. cou—,tors, capsultants and 8.2 If the Project is suspended by the Owner for more 30 9.5 The Owner and Architect, respectively, bind themselves, consecutive days, the Architect shall be compensated r ser- their partners, successors, assigns and legal representatives to vices performed prior to notice of such suspension. en the the other party to this Agreement and to the parmers, suc- Project is resumed,the Architect's compensation s be equit- cessors, assigns and legal representatives of such other party ably adjusted to provide for expenses incurred in a interrup- with respect to all covenants of this Agreement.Neither Owner tion and resumption of the Architect's services. nor Architect shall assign this Agreement without the written 8.3 This Agreement may be terminated by a Owner upon consent of the other. not less than seven days'written notice to a Architect in the 9.6 This Agreement represents the entire and integrated agree- event that the Project is permanently aban- ned.If the Project ment between the Owner and Architect and supersedes all is abandoned by the Owner for more 90 consecutive days, prior negotiations, representations or agreements, either writ- the Architect may terminate this Agre ent by giving written ten or oral. This Agreement may be amended only by written notice. instrument signed by both Owner and Architect. 8.4 Failure of the Owner to make ymcns to the Architect in 9.7 Nothing contained in this Agreement shall create 2 contn-ac. accordance with this Agreement be considered substantial tu21 relationship with or a cause of action in favor Of 2 third nonperformance and cause for ermi ation. party against either the Owner or Architect. 8.5 If the Owner fails to a payment when due the Archi- 9.8 The Architect and Architect's consultants shall have no test for services and expe , the Architect may, upon seven responsibility for the discovery,presence,handling,removal or days'written notice to Owner,suspend performance of see- disposal of or exposure of persons to h2zardous materials in vices under this Agr ent. Unless payment in full is received any form at the Project site, including but not limited to by the Architect with' seven days of the d2te of the notice,the asbestos,asbestos products,polychlorin2ted biphenyl(PCB)or suspension shall effect without further notice.In the event other toxic substances. of a suspension o services, the Architect shall have no liability to the Ownet f delay or damage caused the Owner because of such suspe ton of services. 8.6 In the ent of termination not the fault of the Architect, the Archit ct shall be compensated for services performed prior ARTICLE 10 to to tion, together with Reimbursable Expenses then due and erminadon Expenses. PAYMENTS TO THE ARCHITECT 8.7 ermination Expenses are in addition to compensation for 10.1 DIRECT PERSONNEL EXPENSE B is and Additional Services, and include expenses which are 10.1.1 Direct Personnel Expense is defined as the direct salaries of the Architects personnel engaged on the Project and the portion of the cost of their mandatory and customan•con- tributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick ARTICLE 9 leave, holidays, vacations, pensions and similar contributions MISCELLANEOUS PROVISIONS and benefits. 10.2 REIMBURSABLE EXPENSES 9.1 4g emed by the law of o usiness of the 10.2.1 Reimbursable Expenses include expenses incurred b}' the Architect in the interest of the Project for; 9.2 Terms in this Agreement shall have the same meaning as •1 expense of transportation and living expenses in con- those in AIA Document A201, Gencral Conditions of the Con- nection with out-of-town travel authorized by the tract:for Construction,current as of the date of this Agreement. Owner; .2 long-distance communications, 9.3 Causes of anion between the parties tothis Agreement .3 fees paid for securing approval of authorities having pertaining to acts or failures to act shall be deemed to have jurisdiction over the Project; accrued and the applicable statutes of limitations shall com- mence to run not later than either the date of Substantial Com- .4 reproductions, pletion for acts or failures to act occurring prior to Substantial .5 postage and handling of Drawings and Specifications, Completion, or the date of issuance of the final Certificate for .6 expense of overtime work requiring higher than regu- Payment for acts or failures to act Occurring after Substantial lar rates, if authorized*by the Owner; Completion. .7 renderings and models requested by the Owner, 9.4 Ti e n - of a < the co a�.a consul=Hn ages+ 8 �� g� other and against the contractors, consultant �agC s and including professional li2bilin in requested employees of the other for rb�nly to the extent by the Owner � t norrmlly carried by covered by propett ce during construction, except - -FA,'" GGAP-h" 9& "AA such ri y may have to the proceeds of such insurance .9 expense of computer-tided design and drafting equip- - ment Eime when used in connection with the Project. in advance AIA DOCUMENT 9151-ABBREVIATED OWNER-ARCHrTECT AGREEMENT•THIRD EDITION•AIA• •©198' 5 B151.1987 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE,N W,WASHINGTON, D C 20006 10.3 PAYMENTS ON ACCOUNT OF BASIC SERVICES forth in Subparagraph 11.2.2,based on(1)the lowest born fide bid or negotiated proposal,or(2)if no Yxh bid or proposal is 10.3.1 An initial payment as set forth in Paragraph 11.1 is the received, the most recent preliminary estimate of Construction minimum payment under this Agreement. Cost or detailed estimate of Construction Cost for such por- 10.3.2 Subsequent payments for Basic Services shall be made lions of the Project. monthly and, where applicable, shall be in proportion to ser- 10.4 PAYMENTS ON ACCOUNT OF ADDITIONAL vices performed within each phase of Service. SERVICES AND REJMBURSABLE EXPENSES the titHe l Subparagraph 11.5.1 of this Agreement [xeded or ec- 10.4.1 Paymrna on account of the Ardv[cc['s Additional Ser- tended through no fault of t,mmpens2tion for any vita and for Reimbursable Expenses Shall be made monthly services rrn g the additional period of time shall be wpot presenatio of the Architect's statement of services � .. ._ - rendered or expenses incvrrc . thin 30 days of 10.3.4 When compensation is based on 2 percentage of Con- 10.5 PAYMENTS WITHHELD struction Cost and any portions of the Project are deleted or otherwise not constructed,compensation for those portions of 10.5.1 No deductions shall be made from the Architect's com- the Project shall be p2y2ble to the extent services are per- pens2tion on 2ecoUmt of stuns withheld from payments to formed on those portions,in accordance with the schedule set contractors. See Page 6A ARTICLE 11 BASIS OF COMPENSATION The Owner shall compensate the Architect as folJows: 11.1 AN INITIAL PAYMENT OF Dollars(f ) shall be made upon execution of this Agreement and credited to the OaMer's 2ccount at futal p2yment. 11.2 BASIC COMPENSATION 11.2.1 FOR BASIC SERVICES, as described in Article 2,and any other services included in Article 12 as pan of Basic Services, Basic Compensation shall be computed as follows See Page 6A finsnt bases o(mmpensanon,mrludinq slrpurme7 sums.mufnp'a orpercruaga,and Wen1h•Abase W udid panuvlar metbols Mr,on°PP'S'.l ne<essa7'/ 11.2.2 Where compensation is based on 2 stipulated sum or percentage of Construction Cost,progress payments for Basic Services in each phase shall total the following percentages of the tool Basic Compensadon p2y2ble: (lnsert additional yba as aPPropnale) Design Phase: thirty five percent( 35r) Construction Documents Phase: forty five percent( 45%) Construction Phase twenty percent( 20%) Total Basic Compensation: one hundred percent(100%) ALA DOCUMENT BI 51 -ABBREVIATED OR NER ARCHITECT AGREEMLPr•THIRD EDITION•AIA• •©IW, THE A.NERICAN INSTITUTE OF ARCHITECTS, 1'35 NEU PORK AVENUE,NC,QASHINGTON, DC. 2oo0G B151-1987 6 10 . 6 Books and Records . The Architect shall keep complete and detailed books and records relating to the Basic Services, Reimbursable Expenses and Additional Services . These books and records should be retained by the Architect at its head office for a period of at least three ( 3 ) years after the date of completion of the performance of this Agreement. If there is a dispute between Architect and the Owner , the books and records shall be retained until the dispute is finally settled. The Owner shall have the right at all reasonable times to audit the books and records . If such audit discloses that the Architect has charged and received more than it was entitled hereunder, the Architect shall immediately reimburse the Owner for the excess amount received, together with interest thereon at the rate of one percent ( 1% ) per month but not to exceed the legal rate allowed by law accruing from the date such excess amount was received until repayment thereof . 10 .7 No Additional Compensation for Deficiencies . Notwithstanding anything contained in this Agreement to the contrary, no compensation shall be paid to or claimed by the Architect for services, whether as Additional Services or Basic Services, for additional work required to correct deficiencies in any documents prepared by or on behalf of the Architect , or attributable to defaults , failures, errors or omissions of the Architect, or conflicts in the Contract Documents attributable to the Architect, or changes in the Project requested by the Architect, unless previously approved by the Owner . 10 . 8 Invoices . All payments to the Architect shall be made on the basis of the invoices submitted by Architect and approved by the Owner . Architect ' s invoices to the Owner shall provide complete information and documentation to substantiate Architect ' s charges and shall be in a form acceptable to the Owner . The Architect shall also submit any supporting documentation reasonably requested by the Owner . 11.2. 1 Architect ' s Basic Compensation shall be payable based on the following hourly rates : Hush Kaptur and James Cioffi $125. 00 per hour Supervisor 65. 00 per hour Drafter I 55 . 00 per hour Drafter II 50 . 00 per hour Clerical �I��4\ 22. 50 per hour In addition, shall be reimbursed one hundred twenty percent ( 120%) of the cost" billed to Architect for services of those structural, mechanical and electrical engineering consultants necessary to design the Project . -6A- Total. Basic Compensation for the Project shall not exceed twelve percent (12%) of the Construction Cost of the Project . --6H- 11.3 COMPENSATION FOR ADOITIORAL SERVICES • 11.3.1 FOR PROJECT REPRESENTATION BEYOND BASIC SERVICES, as described in P2ngr2ph 3.2, compensation shell be computed as follows' See hourly rates set forth in Section 11 . 2 . 1 11,3.2 FOR ADDITIONAL SERVICES OF THE ARCHITECT provided under Arudc 3 or identified in Article 12,compensation shall be computed as follows (renew bw's of ComPe 1'an tntJudtng rate and/or multiples of Dv,wl Penovd Egrnu for P,,t spats and employee and ufennf) Pnncnpdr and clam/, employees if requmed ldennfl ep ,f,c see uea ro a baA particular neibed,of comp .Ci,,apph of neveuar)/ See hourly rates set forth in Section 11 . 2 . 1 11.3.3 FOR ADDITIONAL SERVICES OF CONSULTANTS,including 2cidluonal structural,mech2ruc2l and electnenl engineering ser- vices and those provided under Article 3 or idcnufied m Arttdc 12 as part of Addmorul Services,2 multiple of one hundred ( 1 20% )tunes the amounts bdled to the Architect for such senices twenty percent (ldenhfy speaf,c type of c dmnrs in Amae r2. ,f requ,rna/ 11.4 REIMBURSABLE EXPENSES 11.4.1 FOR REIMBURSABLE EXPENSES, as described in Pangr.+ph 10 2,and any other items included in Article 12 as Reimbursable Expenses, 2 muldplc of one hundred ten percent (110% )times the expenses incurred by the Architect, the Archncci's employees and consultants in the interest or the Prora. its ADDITIONAL PROVISIONS S. _ 6Ebca rcdbythis4grcc+ncntpavcaotbeesn-caomplcted. dtir+ 11.52 Paymcnes tee dux and p2y2bIc thirty ( 30) days from the date of the Ardutctl's invoice Amounts unpaid thirty (30) days after invoice date stall bear interest from the date payment is due at the rate entered below, or in the 2bsence thereof, ar the legal rate prevailing from time to time at the pnncipal place of business of the Architect (talent—y rare of oNersn 4rvd") (E}ur)/cur and requ+re j under The federal Trutt,in finding ACr,rnndt Nate and lord oauumae ne1N foul and otber regubrioru al 1b Ounn 1 and Arcbr r.er',p.,,r par ptarsr q tw,�, me lcf icin of Lb,v,yea and tre,t.tinv Tay ape the wld,ry of dtnu a�+ilCi+ Sp�fu:regal adz a,eadd ae oaranw rem nmp,o a di,4 o oe Todtfrallonr,and acts rrgardtj n qutr.Tmer suf3 as eeaYn dudes a•atum) 11.5.3 ALA DOCL ENT 3151 a ABBRE VLATED OWNER ARCHITECT AGREEMEN'r,THIRD EDMON-ALA* •O 19tn THE AMERICAN INSTTM7E OF ARCHITECTS. 1735 NEW YOKX AVENUE,NW,■'ASHLNGTON,DC.20006 8151•TD57 7 ARTICLE 12 OTHER CONDITIONS OR SERVICES (Insert drscripnons of otber snv(ces,ui nUfy Additional Sendcm snchudni"tUn Banc Compensation and modlfuatiw to the payment and mmprnsauon toms (n r=in tbu Agreement.) See Page 8A OWNER ARCHITECT (Signature) (Signaft—) ALA DOMMENT 9161•ABBREVIATED OWNER.ARCHCrECT AGREEMENT•THIRD EDMON•AIA4 •©1967 THE AMMCAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE,N.W.,WASHNGTON,D.C.20006 B151-1987 8 i 12.1 Insurance . The Architect shall procure and maintain, at its sole cost and expense (except the owner ' s and contractor ' s liability insurance policy shall be paid by Owner) , in a form and content satisfactory to Owner, during the entire term of this Agreement, including any extension thereof, the following policies of insurance: 12 . 1. 1 Comprehensive General Liability Insurance. A policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than One Million Dollars ($1 ,000,000 . 00) combined single limit. 12 .1. 2 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. 12 .1 . 3 Automotive Insurance. A policy of compre- hensive automobile liability insurance written on a per occurrence basis in an amount not less than either ( i ) bodily injury liability limits of $250 , 000 . 00 per person and $500, 000 . 00 per occurrence and property damage liability limits of $100, 000 . 00 per occurrence and $250, 000 . 00 in the aggregate or ( ii ) combined single limit liability of $500, 000 . 00 . Said policy shall include coverage for owned, non-owned, leased and hired cars . 12 . 1 . 4 Professional Errors and Omissions Insurance . A policy of professional errors and omissions insurance in an amount not less than Five Hundred Thousand Dollars ( $500 ,000 . 00 ) per claim and in the aggregate. Said policy shall remain in effect until the date of final completion plus five ( 5) years so long as said insurance is reasonably and commercially available as reasonably determined by the Risk Manager of the City. 12 .1 . 5 General Provisions . The insurer issuing the above-referenced policies of insurance shall waive all rights of subrogation and contribution it may have against the Owner , 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 cancelled without providing thirty ( 30 ) days prior written notice to the Owner . In the event any of said policies of insurance are cancelled, the Architect shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 12 . 1 to the Owner . The policies of insurance required by this Agreement shall be satisfactory only if issued by companies satisfactory to the Risk Manager . -8A- r , The Architect agrees that the provisions of this Section 12 .1 shall not be construed as limiting in any way the extent to which the Architect may be held responsible by law for the payment of damages to any persons or property. In the event the Architect subcontracts any portion of the work in compliance with 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 12 . 1 . 12 . 2 Indemnification. The Architect agrees to indemnify, protect and defend the Owner, its officers, agents and employees against, and will hold and save them and each of them harmless from, any and all actions , suits, claims, damages to persons or property, losses, costs (including reasonable attorneys ' fees) , penalties , obligations, errors, omissions or liabilities, (herein "claims or liabilities" ) that may be asserted or claimed by any person, firm or entity arising out of or in connection with the negligent acts, errors or omissions of Architect , its agents , employees , subcontractors, or invitees, provided for herein, to the extent the Architect is found liable for said claims and liabilities, but excluding such claims or liabilities arising from the negligence or willful misconduct of the Owner , its officers, agents or employees, who are directly responsible to the Owner, and in connection therewith: (a) Architect will promptly pay any judgment rendered against the Owner , its officers , agents or employees for any such claims or liabilities arising out of or in connection with the negligent acts, errors or omissions of Architect hereunder to the extent Architect is found liable for said claims and liabilities and Architect agrees to save and hold the Owner , its officers, agents, and employees harmless therefrom; and (b) In the event the Owner , its officers, agents or employees is made a party to any action or proceeding filed or prosecuted against Architect for such damages or other claims arising out of or in connection with the negligent acts, errors or omissions of Architect hereunder that Architect is found to be solely liable for, Architect agrees to pay to the Owner, its officers , agents or employees , any and all costs and expenses incurred by the Owner , its officers, agents or -83- 1 . employees in such action or proceeding, including but not limited to, legal costs and attorneys ' fees. 12 . 3 Independent Contractor. Neither the Owner 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. Owner shall have no voice in the 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 Owner and shall remain at all times as to Owner 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 Owner . Owner 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 . 12 . 4 Non-liability of Owner Officers and Employees . No officer or employee of the Owner shall be personally liable to the Architect, or any successor in interest, in the event of any default or breach by the Owner 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. 12. 5 Conflict of Interest . No officer or employee of the Owner shall 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 paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement . 12 . 6 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 to insure 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. -8C- 12. 7 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 to the following: To the Owner : City of Palm Springs Post Office Box 2743 Palm Springs, CA 92263 Attn: Contract Administrator With a copy to: Rutan & Tucker Post Office Box 1950 Costa Mesa, CA 92628-1950 Attn: David J. Aleshire To Architect: KAPTUR & CIOFFI, Architects 700 E. Tahquitz Way, Suite E Palm Springs, CA 92262 Attn: Mr . James Cioffi 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. 12 .7 Amendment of Letter Agreement . This Agreement amends and supersedes that certain letter agreement by and between Architect and City dated July 24, 1991. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the date first written above. ATTEST: CITY OF P 1IM'"BPRIN - a mun' ipal core at ' n s �.Gity Clerk By: City nager -8D- APPROVED AS TO FORM: RUTAN & TUCKER David J. Aleshire City Attorney ARCHITECT: KAPTUR & CIOFFI, Architects, an Hy: Name. Title, By* Name: Title: -aE-