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HomeMy WebLinkAbout1985-03-05; City Council; Resolution 79196. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 7919 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF C RLSBAD, CALIFORNIA APPROVING AN ARCHITECTURAL SERVICE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND ESBENSEN 6 ASSOCIATES FOR SERVICES PERFORMED FOR CONSTRUCTION OF FIRE STATION #4, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City of Carlsbad and Esbensen 8 Associates have reached an agreement regarding the provision of architectural services for construction of Fire Station #4, a copy marked Exhibit A attached hereto and made a part hereof. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That certain agreement between the City of Carlsbad and Esbensen 6 Associates regarding the provision of architectural services for construction of Fire Station #4 is hereby approved. 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 5th day of March , 1985 by the’following vote, to wit: AYES : Council “zs Casler, Lewis, Kulchin, Qlick and Pettine NOES : None ABSENT : Wne ATTEST: LdL MARY H. JASLER, Mayor K&@l R. RJNDTZ, Deputy dty Cl&k (SEAL) AGREEMENT FOR ARCHITECTURAL SERVICES THIS AGREEMENT, made and entered into as of the day of 9 19 9 by and between the CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City," and ESBENSEN & ASSOCIATES hereinafter ref erred to as "Consult ant .I1 RECITALS City requires the services of ESBENSEN & ASSOCIATES to provide the necessary architecturalfengineering services for preparation of final plans and specifications for Fire Station f4; and Consultant possesses the necessary skills and qualifications to provide the services required by City; NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and a Consultant agree as follows: ( 1 ) CONSULTANT S OBLIGATIONS The Consutlant's obligations shall Be as specified in Article 1, "Architects Services and Responsibilities," of A.I.A. Document 8151, Abbreviated Owner - Architect Agreement. ( 2 1 CITY OBLIGATIONS The City shall be as specified in Article 2, "The Owner's Responsibilities," of A.I.A. Document 8151, Abbreviated Owner - Architect Aareement. .I 0 (3) PROGRESS AND COMPLETION The work under this contract will begin within 10 days after receipt of notification to proceed by the City and be completed within one-hundred twenty (120) days of that date. Extensions of time may be granted if requested by the Consultant and agreed to in writing by the Fire Chief. In consideration of such requests, the Fire Chief will give allowance for documented and substantiated unforeseeable and unavoidable delays not caused by a lack of foresight on the part of the Consultant, or delays caused by City inaction or other agencies' lack of timely action. (4) FEES TO BE PAID TO CONSULTANT The total fee payable according to Paragraph 5, Payment of Fees, shall be $12,000. Paragraph 4.4 of Article 4, "Payments to Architect," contained in A.I.A. Additional allowable payment for expenses shall be as specified in Document 8151, Abbreviated Owner - Architect Agreement. (5) PAYMENT OF FEES A. An initial payment of one thousand two hundred dollars ($1,200) shall be made upon execution of this Agreement and credited to the design phase of the owner ' s account. B. Payment of fees shall be scheduled over four phases of the project with the payment due at the completion phase being equal to the indicated percentage of the total fee. A deduction of ten percent (10%) of each phase shall be withheld until the contract is certified as complete by the Fire Chief. Design Phase : Construction Documents Phase: Bidding Phase: Construction Phase: Twenty-f ive percent (25%) Sixty percent (60%) Five percent (5%) Ten percent (10%) k C. For additional services not covered within the scope of this Agreement, compensation shall be based upon a rate of thirty-five dollars ($35) per hour. D. Payments due the architect and unpaid under this Agreement shall bear interest from the date of payment is due at the rate of twelve percent (12%) annual. (6) CHANGES IN WORK If, in the course Consultant or the City, of this contract and design, changes seem merited by the and informal consultations with the other party indicate that a change in the conditions of the contract is warranted, the Consultant or the City may request a change in contract. the City in the following manner: be forwarded to the City or Consultant to inform them of the proposed changes along with a statement of estimated changes in charges or time schedule. reaching mutual agreement on the proposal, a supplemental agreement shall be prepared by the City and approved by the City Council. Such changes shall be processed by A letter outlining the required changes shall After Such supplemental agreement shall not render ineffective or invalidate unaffected port ions of the agreement. be ordered by the Fire Chief who will inform a principal of the Consultant's firm of the necessity of such action and follow up with a supplemental agreement covering such work. (7) DESIGN STANDARDS Changes requiring immediate action by the Consultant or City shall The Consultant shall prepare the plans and specifications in accordance with the design standards of the City of Carlsbad and recognized current design practices. be used where appropriate. City of Carlsbad. Applicable City of Carlsbad standards and regional standards shall Copies of such standards shall be obtained from the (8) COVENANTS AGAINST CONTINGENT FEES The Consultant warrants that their firm has not employed or retained any company or person, other than a bona fide employee working for the Consultant, to solicit or secure this agreement, and that Consultant has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from, the award or making this agreement. For breach or violation of this warranty, the City shall have the right to annul this agreement without liability, or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. (9) NONDISCRIMINATION CLAUSE The Consultant shall comply with the State and Federal Ordinances regarding nondiscrimination. (10) TERMINATION OF CONTRACT In the event of the Consultant's failure to prosecute, deliver, or perform the work as provided for in this contract, the City may terminate this contract for nonperformance by notifying the Consultant by certified mail of the termination of the contract. The Consultant, thereupon, has five working days to deliver said documents owned by the City and all work in progress to the Fire Chief. The Fire Chief shall make a determination of fact based upon the documents delivered to City of the percentage of work which the Consultant has performed which is usable and of worth to the City in having the contract completed. Based upon that finding as reported to the City Council, the Council shall determine the final payment of the contract. ( 11 ) DISPUTES If a dispute should arise regarding the performance of work under this agreement, the following procedure shall be used to resolve any question of fact Or interpretation not otherwise settled by agreement between parties. Such a questions, if they become identified as a part of a dispute anong persons operating under the provisions of this contract, shall be reduced to writing by the principal of the Consultant or the Fire Chief. A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. or principal receiving the letter shall reply to the letter along with a recommended method of resolution within ten days. If the resolution thus obtained is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager. directed solution to the problem. shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties seeking remedies available to them at law. (12) RESPONSIBILITY OF THE ARCHITECT The Fire Chief The City Council may then opt to consider the In such cases, the action of the City Council The architect is hired to render a professional service only and any payments made to the architect are compensation solely architect may render and recommendations the architect this project. All plans, specifications and estimates engineer's or architect's registration number (both if (13) SUSPENSION OR TERMINATION OF SERVICES This agreement may be terminated by either party for such services the may make in the course of shall include the applicable). upon tendering 30 days written notice to the other party. termination, upon request of the City, the Consultant shall assemble the work product and put same in order for proper filing and closing and deliver said product to City. In the event of termination, the Consultant shall be paid for work performed to the termination date; however, the total shall not exceed the guaranteed total maximum. portions of tasks completed and the compensation to be made. made in compliance with the Code of Federal Regulations. In the event of such suspension or The City shall make the final determination as to the Compensation to be 9 (14) STATUS OF THE CONSULTANT The Consultant shall perform the services provided for herein in Consultant's own way as an independent contractor and in pursuit of Consultant 's independent calling, and not as an employee of the City. under control of the City only as to the result to be accomplished and the personnel assigned to the project, but shall consult with the City as provided for in the request for proposal. ( 15) Consultant shall be CONFORMITY TO LEGAL REQUIREMENTS The Consultant shall cause all drawings and specifications to conform to all applicable requirements of law: Federal, State, and local. Consultant shall provide all necessary supporting documents, to be filed with any agencies whose approval is necessary. The City will provide copies of the approved plans to any other agencies. ( 16 OWNERSHIP OF DOCUMENTS All plans , studies, sketches, drawings, reports and specifications as herein required are the property of the City, whether the work for hich they are made be executed or not. In the event this contract is terminated, all documents, plans , specifications, drawings, reports and studies shall be delivered forthwith to the City. (1) copy of the plans for his/her records. (17) HOLD HARMLESS AGREEMENT Consultant shall have the right to make one The City, its agents, officers and employees shall not be liable for any claims, liabilities, penalties, fines, or any damage to goods, properties, or effects of any person whatever, nor for personal injuries or death caused by, 'or resulting from, or claimed to have been caused by, or resulting from, any act or omission of Consultant or Consultant's agents, employees or representatives. Consultant agrees to defend, indemnify and save free and harmless the City and its authorized agents, officers, and employees against any of the foregoing liabilities or claims of any kind and any cost and expense that is incurred by the City on account of any of the foregoing liabilities, including liabilities or claims by reason of alleged defects in any plans and specifications, uriless the liability or claim is due, or arises out of, solely to the City's negligence. ( 18 ) ASSIGNMENT OF CONTRACT The Consultant shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of the City. SUBCONTRACTING If the Consultant shall subcontract any of the work to be performed under this contract by the Consultant, Consultant shall be fully responsible to the City for the acts and omissions of Consultant's subcontractor and of the persons either directly or indirectly employed by the subcontractor, as Consultant is for the acts and omissions of persons directly employed by Consultant. contained in this contract shall create any contractual relationship between any subcontractor of Consultant and the City. subcontractor and every subcontractor of a subcontractor by the terms of this contract applicable to Consultant's work unless specifically noted to the contrary in the subcontract in question approved in writing by the City. ( 20) PROHIBITED INTEREST Nothing The Consultant shall bind every No official of the City who is authorized in such capacity on behalf of the City to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of any architectural, engineering inspect ion, construction or material supply contractor, or any subcontractor in connection with the construction of the project, shall become directly or indirectly interested personally in this contract or in any part thereof. employee, architect, attorney, engineer, or inspector of or for the City who is authorized in such capacity and on behalf of the City to exercise any executive, supervisory, or other similar functions in connection with the performance of No officer, this contract shall became directly or indirectly interested personally in this contract or any part thereof. ( 2 1 VERBAL AGREEMENT OR CONVERSATION No verbal agreement or conversation with any officer, agent, or employee of the City, either before, during, or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor such verbal agreement or conversation entitle the Consultant to any additional payment whatsoever under the terms of this contract. (22) SUCCESSORS OR ASSIGNS Subject to the provisions of paragraph (17), Hold Harmless Agreement, all terms, conditions, and provisions hereof shall insure to and shall bind each of the parties hereto, and each of their respective heirs, executors, administrators, successors and assigns. (23) EFFECTIVE DATE This agreement shall be effective on and from the day and year first above writ ten. (24) CONFLICT OF INTEREST The Consultant shall file a conflict of interest statement with the City Clerk of the City of Carlsbad. The Consultant shall report investments or interests in real property. (25) INDEMNIFICATION Architect is skilled in the professional calling necessary to perform the services and duties agreed to be performed by an architect under this agreement, and owner, not being skilled in such matters, relies upon the skill and knowledge of architect to perform said services and duties consistent with skills prevalent in the industry. Therefore, architect agrees to indemnify, hold harmless and defend owner, City Council and each member thereof, and every officer and employee of owner, from any and all liability or financial loss, including but not limited to, liability or loss resulting from any suits, claims, losses or actions brought by any person or persons and and expenses of litigation brought against owner, City Council from all costs and each member thereof, or any officer or employee of owner, by reason of injury to any person or persons, including but not limited to, officers and employees of architect, or damage, destruction, or loss of property of any kind whatsoever and to whomsoever it may belong; including but not limited to that of architect, resulting from any or all negligent activities or negligent operations of architect or any person employed by architect in the performance of this agreement. ( 26) INSURANCE Architect shall at all times during the term of this agreement carry, maintain, and keep in full force and effect, in a form and with an insurance company acceptable to, and approved by, the City Attorney, policies of motor vehicle liability insurance with minimum limits of $100,000/$300,000 personal injury and $50,000 property damage and Comprehensive General Liability Insurance, with minimum limits of $500,000 combined single limit in aggregate, against any injury, death, loss or damage as a result of negligent acts or omissions by the architect, together with an endorsement in substantially the form set forth below. ENDORSEMENT It is hereby understood and agreed that owner, its City Council and each member thereof and every officer and employee of owner shall be naned as additional named insureds with severability of interests assured as respects claims arising out of the architectural services in connection with development of the project. It is further agreed that the following Indemnity Agreement between the owner and the named insureds is covered under the policy: Architect agrees to indemnify, hold harmless and defend owner, its City Council and each member thereof, and every officer and employee of owner from any and all liability or financial loss resulting from against any employee of owner any suits, claims, losses, or actions brought which results from the negligent actions of architect's officers, employees, agents or others employed by architect while engaged by architect in the performance of this agreement. It is further agreed that the inclusion of more than one assured shall not operate to increase the limit of the company's liability and that insurer waives any right of contribution with insurance which may be available to owner. In the event of cancellation or material change in the above coverage, the company will give forty-five (45) days written notice of cancellation or material change to the certificate holder. Architect agrees to maintain in force at all times during the term of this agreement , Workers ' Compensation Insurance as required by law. In addition to Comprehensive General Liability Insurance required herein, architect agrees that prior to submission of the plans and specifications to owner, architect shall obtain and shall maintain at all times thereafter Professional Liability Insurance in the amount of $250,000 which shall provide coverage for negligent acts, errors or omissions by architect which arise out of the professional services required by this agreement. Said Professional Liability Insurance shall be in a form and with an insurance company acceptable to and approved by the City Attorney and shall be maintained in effect for a period of not less than five years following completion of all services under this agreement. At all times during the term of this agreement, or as otherwise provided herein, architect shall maintain on file with the City Clerk of owner a certificate of the insurance carrier or carriers showing that the aforesaid policies are in effect in the amount above provided, the insureds are named therein as specified herein and that the policies cannot be cancelled or reduced by architect except on forty-five (45) days notice to owner. not have the right to receive compensation under this agreement until such Architect shall certificate or certificates are filed with the City Clerk. cancel said insurance coverage without the owner having been given forty-five (45) days prior notice thereof by architect. ( 27 ) INDEPENDENT CONTRACTOR Architect shall not The architect is and shall at all times remain as to the owner a wholly independent contractor. Neither the owner nor any of its agents shall have control over the conduct of the architect or any of the architect's employees, except as herein set forth. manner, represent that it or any of its agents or employees are in any manner agents or employees of the owner. (28) The architect shall not, at any time, or in any FAIR EMPLOYMENT PRACTICES/EQUAL OPPORTUNITY ACTS In performance of this agreement, the architect shall comply with all applicable provisions of the California Fair Employment Practices Act (California Labor Code Sections 1410 - et. 2.) and the applicable equal employment provisions of the Civil Rights Acts of 1964 (42 U.S.C. 200e - 2171, whichever is more restrictive. (29) TERMINATION OF AGREEMENT If in the opinion of the owner, the architect fails to perform or provide prompt, efficient and thorough service, or if the architect fails to complete the work within the time limit provided, the owner shall have the right to terminate this agreement upon written notice to architect. notice, architect shall immediately cease work under the agreement, and furnish owner with all sketches, drawings, computations, plans and specifications. Upon receipt of such Insofar as such materials are complete and acceptable to owner, owner shall pay architect the reasonable value of the sevices rendered by architect; provided, however, the amount due shall not exceed ninety percent (90%) of the amount provided for the completion of the phase in which the agreement is terminated. Should owner terminate the agreement under this provision, it is understood and agreed that from that point forward owner will not be able to refer to Esbensen & Associates as "architect" without prior written approval. architect has performed partial design work at the time of termination, such partial work, if used thereafter, will not be the responsibility of the architect nor will the architect be held liable for any further use of such documents . (30) CANCELLATION OF AGREEMENT In the event Except as provided in Section 29 owner may cancel this agreement at any Architect agrees to time upon fifteen (15) days written notice to architect. cease all work under this agreement on or before the effective date of such notice. Owner reserves the right to amend the services to be performed by and, accordingly the fee to be paid to, the architect, or to discontinue all further work at the end of any phase. In the event of termination or cancellation of this agreement by owner, due to no fault or failure of performance by architect, architect shall be paid full compensation for all services and duties performed by architect, an mount to be determined as follows: A. Architect shall be entitled to retain any payments which may have been made to architect under the provisions of this agreement prior to said cancel la t ion. 8. For work done in accordance with all of the terms and provisions of this agreement and for which payment is not yet due, architect shall be paid an amount equal to the amount of service performed prior to the effective date of cancellation; provided, however, that in no event shall the amount of money to be paid under the foregoing provisions of this paragraph exceed the amount which would (31) other be paid architect for the full performance of said items of service. NOTICE Whenever it shall be necessary for either party to serve notice on the respecting this agreement, such notice shall be served by certified mail addressed to the City Manager of owner, 1200 Elm Avenue, Carlsbad, California, 92008; or to architect Esbensen & Associates, 6150 Yarrow Drive, Suite H, Carlsbad, California 92008 unless and until different addresses may be furnished in writing by either party to the other, and such notice shall be deemed to have been served within seventy-two (72) hours after the same has been deposited in the United States Post Office by certified mail. This shall be valid and sufficient service of notice for all purposes. (32) COST REPORTING Any documentation or written report shall contain in a separate section the numbers and dollars amount of all contracts and subcontracts relating to the preparation of the document or report unless less than $5,000. (33) ARCHITECT 'S COMPLIANCE The architect shall comply in all schematic design, design development and construction document preparation with all applicable federal, state and local building and construction requirements and in the event the owner determines that any of these aspects do not comply with the applicable federal, state or local building or construction standards, the architect shall, at no expense to owner, revise the plans or specifications to conform therewith. ( 34) CONFLICT In the event of any conflict between the terms of this article and either other provisions of this agreement or the general conditions of the contract for construction the terms of this article shall control. IN WITNESS WHEREOF, we have hereunto set our hands and seals. CITY Of CARLSBAD, a municipal corporation "Y ' MARY H. CASLER, Mayor ATTEST : ALETHA L. RAUTENKRANZ, City Clerk APPROVED AS TO FORM: VINCENT F. BIONDO, JR., City Attorney ESBENSEN & ASSOCIATES Architect -.I - PHILIP G. ESBENSEN, A.I.A. ATTEST : THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document 8157 Abbreviated Form of Agreement Between Owner and Architect For Construction Projects of Limited Scope 1978 EDITION THIS DOCUMENT HAS l,MPORTAM LEGAL CONSEQUENCES; CONSULTATION WlTH AN A7 TORNEY I5 ENCOURAGED WlTH RESPECT TO US COMPLETION OR MODlFlCATION AGREEMENT made as of the Hundred and BETWEEN the Owner: day of in the year of Nineteen 7 ;Ind the Architect: \ For the following Project: ilnclucfe detailed description of Project location and scope.) The Owner and the Architect agree as set forth below. Copyright 19i4, 9 1978 by Tlic American Institute of Architects, 1735 NCW York Avenue, N.W.. Washington. D.C. 2ooo6. Kelw;tluc:~on of the ma:crial herein or cub5tantidl quotation of its provisions without pcrniission oi the AIA \iolrtes the cupyriglit IJWS oi the Lnitrd Stater and will be sublcct to legal prosecution. - -- AIA DOCUME.41 BlFl ABBKLVIATEU OiVNER-ARCHITECT AGREEWNT )CINE 1978 EDITION AM* .E 1178 TIIF. A.MERlC:\% IXSTITGTE OF ARCHITECTS, 1735 NEW YORK AVtSUE, N.W., WASHINGTON, D.C. 2WJ6 8151-1978 1 - Terms and Conditions of Agreement Between Owner and Architect 1 .-I 1.1 .I ARTICLE 1 ARCHITECT‘S SERVICES AND RESPONSlBILlTlES The Architect’s Basic Services are as described un- der the four Phases identified below and in Article IO, and unless otherwise provided in Article IO; include normal structural, mechanical and electri- cal engineering services. DESIGN PHASE The Architect shall review with the Owner alterna- tive approaches to design and construction of the Project. 1.1.2 Based on the mutually accepted program and Proj- ect budget requirements, the Architect shall prepare, for approval by the Owner, Design Documents consisting of drawings and other documents appropriate for the Proj- ect, and shall submit to the Owner a Statement of Proba- ble Construction Cost. 1.2 CONSTRUCTION DOCUMENTS PHASE 1.2.1 Based on the approved Design Documents, the Ar- chitect shall prepare, for approval by the Owner, Con- struction Documents consisting of Drawings and Specifi- cations setting forth in detail the requirements for the construction of the Project and shall advise the Owner of any adjustments to previous Statements of Probable Construction Cost. 1.2.2 The Architect shall assist the Owner in connection with the Owner‘s responsibility for filing documents re- quired for ’the approval of governmental authorities hav- ing jurisdiction over the Project. 1.3 BIDDING OR NEGOTIATION PHASE 1.3.1 Unless provided in Article 10, the Architect, fol- lowing the Owner’s approval of the Construction Docu- ments and of the most recent Statement of Probable Con- struction Cost, shall assist the Owner in obtaining bids or negotiated proposals and in awarding contracts for con- struction, \ 1.4 CONSTRUCTION PHASE-ADMINISTRATION OF THE CONSTRUCTION CONTRACT 1.4.1 The Construction Phase will commence with the award of the Contract for Construction and will terminate when final payment to the Contractor is due, or in the absence of a final Certificate for Payment or of such due date, sixty days after the Date of Substantial Completion of the Work, whichever occurs first. 1.4.2 Unless otherwise provided in this Agreement and incorporated in the Contract Documents, the Architect shall provide administration of the Contract for Construc- tion as set forth below and in the edition of AIA Docu- ment A201, General Conditions of the Contract for Con- struction, current as of the date of this Agreement. 1.4.3 The Architect ‘shall be a representative of the Owner during the Construction Phase. Instructions to the Contractor shall be forwarded through the Architect. 1.4.4 The Architect shall visit the site at intervJls appro- priate to the stage of construction or as otherwise dgreed by the Architect in writing to become generally familiar with the progress and quality oi the Work and to deter- mine in general if the M’ork is proceeding 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. On the basis of such on-site observations as an architect, the Architect shall keep the Owner informed of the progress and quality of the Work, and shall endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor. 1.4.5 The Architect shall not have control or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, for the acts or omissions of the Contractor, Sub- contractors or any other persons performing any of the Work, or for the failure of any of them to carry out the Work in accordance with the Contract Documents. 1.4.6 The Architect shall at all times have access to the Work wherever it is in preparation and progress. 1.4.7 The Architect shall determine the amounts owing to the Contractor based on observations at the site and on evaluations of the Contractor’s Applications for Pay- ment, and shall issue Certificates for Payment in such amounts. 1.4.8 The issuance of a Certificate for Payment shall con- stitute a representation by the Architect to the Owner, based on the Architect’s observations at the site as pro- vided in Subparagraph 1.4.4 and on the data comprising the Contractor’s Application for Payment, that, to the best of the Architect’s knowledge, information and belief, the Work has progressed to the point indicated; the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work for conform~nce with the Contract Documents upon Substantial Complc- tion, to the results of any subsequent tests required by cr performed under the Contract Documents, to mic.)r deviations from the Contract Documents correctable pr w to completion, and to any specific qualifications stated +n the Certificate for Payment); and that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment shall not be a repre- sentation that the Architect has made any examination !o ascertain how and for what purpose the Contractor has used the moneys paid on account of the Contract Sum. 1.4.9 The Architect shall be the interpreter of the rc- quirements of the Contract Documents and the judge qf the performance thereunder by both the Owner and Contractor, and shall render written decisions on all claims, disputes and other matters in question between the Owner and the Contractor. In the capacity of inter- preter and judge, the Architect shall endeavor to secure faithful performance by both the Owner and the Con- tractor, shall not show partiality to either, and shall not be - AIA DOCUMENT 8151 ABRREVIATED OWNER-ARCHITECT ACREEMENT JUNE 1978 EDITION AIA9 @ 19%- THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE. N.W., WASHINGION. D.C. 20006 8151-1978 2 30 - liable for the result of any interpretation or decision rendered in good faith in such capacity. 1.4.10 The Architect shall have authority ,to reject Work which does not conform to the Contract Documents, and will have authority to require special inspection or testing of the Work whenever, in the Architect‘s reasonable opin- ion, it is necessary or advisable for the implementation of the intent,of ‘the Contract Documents. 1.4.11 The Architect shall review and approve or take other appropriate action upon the Contractor’s submittals such as Shop Drawings, Product Data and Samples, but only for conformance with the design concept of the Work and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay. The Architect’s ap- proval of a specific item shall not indicate approval of an assembly of which the item is J component. 1.4.12 The Architect shall prepare Change Orders for the Owner’s approval and execution, and shall have authority to order minor changes in the Work not involving an adjustment in the Contract S’um or an extension of the 1.4.13 The Architect ‘shall conduct inspections to deter- mine the Dates of Substantial Completion and final com- pletion, and shall issue a final Certificate for Payment.. 1.4.14 The extent of the duties, responsibilities and limita- tions of authority of the Architect as the Owner’s repre- sentative during construction shall not be modified or ex- tended without written consent of the Owner, the Con- tractor and the Architect. 1.5 ADDITIONAL SERVICES 1.5.1 Additional Services shall be provided if authorized or confirmed- in writing by the Owner or if included in Article 10, and they shall be paid for by the Owner as provided in ,this Agreement. 1.5.2 If the Owner and the Architect agree that more extensive representation at the site than is described in Paragraph 1.4 shall be provided, such additional project representation shall be provided and paid for ;IS set forth in Article 10. 1.6 TIME 1.6.1 The Architect shall perform services as expediti- ously JS is consistent with proiessional skill and care and the orderly progress of the Work. ’ \Contract Time. . ’ ARTICLE 2 THE OWNER’S RESPONSIBILITIES Tlic following services and responsibilities, and Jnv others so indicated in Article 10, shall be un- dertaken by the Owner. 2.1 The Owner shall provide full information including J program, which shall set forth the Owner’s design objectives, constraints and criteria. 2.2 The Owner shall furnish a legal description and a certified land survey of the site and the services of soil engineers or other consultants when such services are deemed necessary by the Architect. 2.3 The Owner shall furnish structural, mechanical, chemical and other laboratory tests, inspections and re- - ports as required by law or the Contract Documents. 2.4 The Owner shall furnish all legal, accounting and insurance counseling services as may be necessary at any time for the Project, including such auditing services as the Owner may require to verify the Contractor’s Applica- tions for Payment or to ascertain how or for what pur- poses the Contractor uses the moneys paid by the Owner. 2.5 The services, information, surveys and reports re- quired by Paragraphs 2.2 through 2.4 inclusive shall be furnished at the Owner‘s expense, and the Architect shall be entitled to rely upon the accuracy and completeness thereof. 2.6 If the Owner observes or otherwise becomes aware of any fault or defect in the Project or nonconformance with the Contract Documents, prompt written notice thereof shall be given by the Owner to the Architect. 2.7 The Owner shall furnish required information and shall render approvals and decisions as expeditiously as necessary for the orderly progress of the Architect‘s serv- ices and of the Work. ARTICLE 3 CONSTRUCTION COST 3.1 DEFINITION 3.1.1 The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the Project designed or specified by the Architect. 3.1.2 The Construction Cost shall include at current mar- ket rates, including a reasonable allowance for overhead and profit, the cost of labor and materials furnished by the Owner and any equipment which has been designed, specified, selected or specially provided for by the Archi- tect. 3.1.3 Construction Cost does not include the compensa- tion of the Architect and the Architect’s consultants, the cost of the land, rights-of-way, or other costs which are the responsibility of the Owner as provided in Article 2. 3.2 RESPONSIBILITY FOR CONSTRUCTION COST 3.2.1 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 nego- tiating conditions. Accordingly, the Architect cannot and does not warrant or represent that bids or negotiated prices will not vary from any Statement of Probable Con- struction Cost or other cost estimate or evaluation pre- pared by the Architect. 3.2.2 No fixed limit of Construction Cost shall be estab- lished as a condition of this Agreement by the:furnishing, proposal or establishment of a PrQject budget, unless such fixed limit has been agreed upon.io writing and signed b,. the parties hereto. If such a fixrd limit has been estab- Iibhed, the Architect shall be 1::rmitted to include con- .- tingencies for design, bidding and price escalation, to de- termine what materials, equipment, component systems and types of construction are to be included ip the Con- tract Documents, to make reasonable adjustmen.,. in the scope of the Project and to include in.th& Contract DOC- umcnts Alternate Bids to adjust the Constktion Cost to the fixed limit. Any such fixed limit shall be increased in 3 B151-19?8 AIA DOCUMENT 8151 A8RRCVIATED OLVNER-ARCHITECT AGREEMENT IUNE 19.8 EDITION AIA” C 1973 Tt1E A.\\ERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YOKK AVENUE, N \V., WASt1INGTON, D.C. 20006 3/ the amount of any increase in the Contract Sum occurring after execution of the Contract for Construction. 3.2.3 Any Project budget or fixed limit of Construction Cost shall be adjusted to reflect any change in the general level of prices in the construction industry between the date of submission of the Construction Documents to the Owner and the date on which proposals are sought. 3.2.4, If a fixed limit of Construction Cost (adjusted as provided in Subparagraph 3.2.3) is exceeded by the low- est bona fide bid or negotiated proposal, the Owner shall (1) give written approval of an increase in such fixed limit, (2) authorize rebidding or renegotiating of the Project within a reasonable time, (3) if the Project is abandoned, terminate in accordance with Paragraph 7.2, or (4) coop- erate in revising the Project scope and quality as required to reduce the Construction Cost. In the case of (41, pro- vided a fixed limit of Construction Cost has been estab- lished as a condition of this Agreement, the Architect, without additional charge, shall modify the Drawings and Specifications as necessary to comply with the fixed limit. The providing of such service shall be the limit of the Architect's responsibility arising from the establishment of such fixed limit, and having done so, the Architect shall be entitled to compensation for all services performed, in accordance with this Agreement, whether or not the Con- struction Phase is commenced. ARTICLE 4 PAYMENTS TO THE ARCHITECT r 4.1 An initial payment as set forth in Paragraph 9.1 is the minimum payment under this Agreement. 4.2 Subsequent payments for Basic Services shall be made monthly and shall be in proportion to services per- formed within each Phase. 4.3 When compensation is based on a percentage of '. Construction Cost, and any portions of the Project are deleted or otherwise not constructed, compensation for such portions of the Project shall be payable to the extent services are performed on such portions, in accordance with the schedule set forth in Subparagraph 9.2.2, based on (1) the lowest bona fide bid or negotiated proposal, or (2) if no such bid or Droposal is received, the most recent carried by the Architect and the Architect's con- sul tants. 4.5 Payments on account of the Architect's Additional Services and for Reimbursable Expenses as defined in Paragraph 4.4 shall be made monthly upon presentation of the Architect's statement of services rendered or ex- penses incurred. 4.6 No deductions shall be made from the Architect's compensation on account of sums withheld from pay- ments to contractors. 4.7 If the Project is suspended or abandoned in whole or in part for more than three months, the Architect shall be compensated for all services performed prior to receipt of written notice from the Owner of such suspension or abandonment, together with Reimbursable Expenses then due and all Termination Expenses as deiined in Paragraph 7.4. If the Project is resumed after being suspended for more than three months, the Architect's compensation shall be equitably adjusted. ARTICLE 5 OWNERSHIP AND USE OF DOCUMENTS 5.1 Drawings and Specifications as instruments of serv- ice are and shall remain the property of the Architect whether the Project for which they are made is executed or not. The Owner shall be permitted to retain copies, in- cluding reproducible copies, of Drawings and Specifica- tions for information and reference in connection with the Owner's use and occupancy of the Project. The Draw- ings and Specifications shall not be used by the Owner on other projects, for additions to this Project, or for com- pletion of this Project by others provided the Architect is not in default under this Agreement, except by agreement in writing and with appropriate compensation to the Architect. 5.2 Submission or distribution to meet official regula- tory requirements or for other purposes in connection with the Project is not to be construed as publicatior in derogation of the Architect's rights. ARTICLE 6 ARB1 rRATlON .. Statement of Probabie Construction Cost. 4.4 made by the Architect in the interest of the Project for: 6.1 All claims, disputes and other matters in quesiton between the Parties to this Agreement, arising out 01' 01 relating to this Agreement or the breach thereof, shdl be decided by arbitration in accordance with the Constl.ic- tion industry Arbitration Rules of the American Arbi.ra- tion Association then obtaining unless the parties mutu- ally agree otherwise. No arbitration, arising out of or re- lating to this Agreement, shall include, by consolidat;on, joinder or in any other manner, any additional person not a party to this Agreement except by written consent containing a specific reference to this Agreement md signed by the Architect, the Owner, and any other persen sought to be joined. Any consent to arbitration invohing an additional person or persons shall not constitute cnn- sent to arbitration of any dispute not described therein. This Agreement to arbitrate and any agreement to arbi- trate with an additional person or persons duly consented to by the parties to this Agreement shall be specific dly enforceable under the prevailing arbitration law. Reimbursable Expenses include actual expenditures expense of transportation and living expenses in connection with out-of-town travel, authorized by the Owner, .2 long distance communications, .3 fees paid for securing approval of authorities hav- .4 reproductions, -5 Postage and handling of Drawings and SPecifica- .6 renderings and models requested by the Owner, .7 expense oi overtime work requiring higher than regular rates, if authorized by the Owner, -8 expense of any additional insurance coverage or limits, including professional liability insurance, requested by the Owner in excess of that normally ing jurisdiction over the Project, tions, - AIA DOCUMENT 6151 ABBREVIATED OWNER-ARCHITECT AGREEMENT JUNE 1978 EDITION AIAe (I) 1978 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASt1INGTON. D.C. Zoo06 8151-1978 4 6.2 In no event shall the demand for arbitration be made after the date when institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. 6.3 The award rendered by the 'arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 7 TERMINATION OF AGREEMENT 7.1 This Agreement may be terminated by either party upon seven days' written notice should the other party fail substantially to perform in accordance with its terms through no fault of the party initiating the termination. 7.2 This Agreement may be terminated by the Owner upon at least seven days' written notice to the Architect in the event that the Project is permanently abandoned. 7.3 in the event of termination not the fault of the Architect, the Architect shall be compensated for all services performed to termination date, together with Re- imbursable Expenses then due and all Termination Ex- penses as defined in Paragraph 7.4. 7.4 Termination Expenses include expenses directly at- tributable to termination for which the Architect is not otherwise compensated, plus an amount computed as a percentage of the total compensation earned to the time of termination, as follows: .1 20 percent if termination occurs during the Design Phase, or .2 10 percent if termination occurs during the Con- .3 5 percent if termination occurs during any subse- struction Documents Phase, or quent phase. ARTICLE 8 MISCELLANEOUS PROVISIONS 8.1 This Agreement shall be governed by the law of the principal place of business of the Architect. 8.2 As between the parties to this Agreement: as to all acts or failures to act by either party to this Agreement, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the relevant Date of Substantial Completion of the Work, and as to any acts or failures to act occurring after the relevant Date of Substantial Completion, not later than the date of issuance of the final Certificate for Payment. 8.3 The Owner and the Architect, respectively, bind themselves, their partners, successors, assigns and legal representatives to the other party to this Agreement and 'to the partners, successors, assigns and legal representa- tives of such party with respect to all covenants of this Agreement. Neither the Owner nor the Architect shall assign, sublet or transfer any interest in this Agreement without the written consent of the other. 8.4 This Agreement represents the entire and inte- grated agreement between the Owner and the Architect and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both Owner and Architect. - AIA DOCUMENT 8151 ABBREVIATED OWNER-ARCHITECT AGREEMENT JUNk 1978 EDITION AlAe Q 1978 THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 2oCO6 5 B151-1978 d3