Form of Agreement Between Client and Architect for School Building Projects

Transcription

1 Form of Agreement Between Client and Architect for School Building Projects THIS AGREEMENT, made in two copies on May 1, 2009, in the year Two Thousand and Nine BY AND BETWEEN TAHOE TRUCKEE UNIFIED SCHOOL DISTRICT, Placer County, California, hereinafter called the CLIENT or District, and Gaunt Zimmer Design hereinafter called the ARCHITECT located at Business Park Dr. Ste 13. Truckee, CA WITNESSETH: Whereas the Client intends to perform the following work: consolidate the District office at the Sierra Mountain Community Education Center located at Donner Pass Rd. The project will include but not be limited to modifying the existing building to accommodate the District s administration, business, technology, and human resources departments as well as the board room, staff development, conference, print shop, storage and mail room functions. The preliminary plan for the project shall be DO>SMCEC Scenario 4A- Exhibit E. NOW, THEREFORE, The Client and Architect agree as follows: I. PROJECT BUDGET A. The Design budget for this project is $375,000, and shall be adjusted after award of construction contract, but in all cases shall be subject to OPSC guidelines and SAB approval. B. The Scope of the Project is dependent upon the funds available for the Project. The Architect will exercise their best judgment in determining the balance between the size of the Project to achieve a satisfactory solution within budget limitations, or report their findings when such balance or budget limitations cannot be reconciled. The type of construction and the quality of construction shall match the work done in previous phases at the Campus. II. BASIC SERVICES OF THE ARCHITECT (See Attachment B ) 1. The Architect shall make a written record of meetings, conferences, discussions and decisions made between or among the District, Architect, IOR and Contractor during all phases of the Project and concerning any material condition in the requirements, scope, performance and/or sequence of the work. A. Schematic Design Phase- 1. The Architect shall review with the Client, the proposed site use and improvements; selection of materials, building systems and equipment; and methods of Project delivery. DO 2009 GZD agrmt (4) Page 1 of 29

2 2. The Architect shall review the program furnished by the Client to ascertain the requirements of the Project and shall arrive at a mutual understanding of such requirements with the client. 3. The Architect shall conduct and document necessary conferences and develop tentative schemes or methods to construct improvements leading to a recommended solution of the program. 4. The Architect shall review with the Client the alternative approaches to design and construction of the Project. 5. Based on the mutually agreed-upon program, schedule and construction budget requirements, the Architect shall prepare, for approval by the Client, Schematic Design Documents consisting of drawings and other documents illustrating the scale and relationship of Project components. 6. If directed by the Client at the time of approval of construction schemes, the preliminary and final working drawings and specifications shall be prepared so that portions of the work of the Project may be performed under separate construction contracts, or so that the construction of certain buildings, facilities, or other portions of the project may be deferred. An additional fee shall be negotiated with Architect to provide separate construction contracts. 7. The Architect shall review the budgeted amount of the project with the Client and prepare a probable cost of construction subject to later revision. 8. At intervals appropriate to the progress of the Schematic Design Phase and mutually agreeable to the Client and Architect, the Architect shall provide schematic design studies for the Client s review. 9. The Architect shall assist the District and District s consultants and provide information to identify areas within the project, which may be appropriate for testing of soil, lead, and hazardous materials. The District s consultants, other than the Architect, shall define specific scopes and areas for testing. The Architect shall provide guidance and coordination on scheduling of testing. On multi-phase projects, similar services on each phase of the project shall be provided as a basic service. B. Design Development Phase 1. Upon approval by the Client of the services and schematic design documents set forth in paragraph A, the Architect shall prepare design development documents, including floor plans, elevations and other drawings, and shall prepare outline specifications, to fix and illustrate the size and character of the entire project in its essentials as to architectural, DO 2009 GZD agrmt (4) Page 2 of 29

3 structural, mechanical, and electrical systems including phone, data and fire alarm, kinds of materials, categories of proposed work, and type of structure. 2. The Architect shall prepare a preliminary probable cost of construction subject to revision at the construction document phase. 3. The Architect shall apply for required approvals from applicable governmental agencies having jurisdiction. 4. The Architect, with the assistance of the Client, shall be responsible for filing preliminary plans and other documents as required by law with the California Department of Education ("CDE"). The Architect shall provide the District's Director of Facility Services with a copy and proof of filing of each document so filed. 5 Architect shall provide to the owner for review and approval design development documents. Architect shall respond to all review comments by owner prior to completing the Construction Documents phase. Architect shall incorporate comments and revisions made by Client for purposes of quality control, if such comments/revisions are timely submitted to Architect, and are approved by Architect, which approval shall not be unreasonably withheld. C. Construction Document Phase (Final Plans) 1. The Architect shall prepare, from the approved design development documents, working drawings and specifications setting forth in detail and prescribing the work to be done, and the materials, workmanship, finishes, and equipment required for the architectural, mechanical, electrical, plumbing and structural, components of the project. The Architect shall develop phasing, staging, site access & fire evacuation plans (approved by TFPD and site administrators). The Architect shall also prepare necessary bidding information. The Architect shall incorporate the client furnished front end documents (section 00) of the contract, and any specifications provided by district consultants. (i.e. haz mat) and shall modify the district furnished supplementary conditions and general requirements (division 01) for the project. The Architect shall assist the Client in the drafting of proposal and contract forms, including Notices Inviting Bids, Instructions to Bidders, and other related documents. 2. The Architect shall apply for required approvals from applicable governmental agencies having jurisdiction. DO 2009 GZD agrmt (4) Page 3 of 29

4 3. The Architect shall notify the Client whether or not there are any indicated adjustments in the preliminary probable cost of construction arising from market fluctuations or approved changes in scope or requirements. 4. Architect shall at 50% CD completion and upon submission to DSA provide to the owner for review and approval Construction Documents. Architect shall respond to all review comments during construction document phase, incorporate comments and revisions made by Client for purposes of quality control. Such comments/revisions shall be submitted timely to Architect, and are approved by Architect, which approval shall not be unreasonably withheld. 5. The Architect, with the assistance of the Client, shall be responsible for filing the final plans, specifications, bid documents, and other documents as required by law with CDE and the Division of the State Architect ("DSA"). The Architect shall provide the District's Director of Facility Services with a copy and proof of filing of each document so filed. The Architect shall modify the documents as required by any agency having jurisdiction over the Project. 6. The Architect, with the assistance of the Client, shall prepare and file necessary documents and applications for Project approval and processing by the DSA. Architect shall monitor and facilitate all required review of Project documents by DSA, and Architect shall make all revisions to the Construction Documents as required by DSA. District shall pay all fees required by governmental agencies having jurisdiction over the Project. Architect shall, whenever feasible, calculate beforehand the costs due to governmental agencies and submit such cost information to District two weeks in advance to facilitate payment. D. Bidding Phase The Architect's responsibilities during the bidding phase are more particularly set forth below: 1. Bid Open Date. Upon authorization by the Governing Board of District (the "Board") to bid the Project, the Architect with the District's assistance shall establish a date (and time) at which the bids will be opened (the "Bid Open Date"). 2. Pre-Publication Duties -- List of Trades. The Architect and the Director of Facility Services shall agree on the date the Notice Inviting Bids is to be first published in a newspaper as required by law. Inquiries regarding crafts and trades will be referred to the Architect for resolution. DO 2009 GZD agrmt (4) Page 4 of 29

5 3. Notice Inviting Bids. The Architect, in consultation with the District, shall prepare the necessary bidding information and include the form of the Contract provided by the Client. These shall be prepared for review by District's attorney, and shall be available for such legal review at least four weeks prior to need for their utilization. The Architect shall make such changes as are recommended by the Client or the Client s attorney. The Architect shall provide the Director of Facility Services with a typed Notice Inviting Bids suitable for publication after approval by Client. The Director of Facility Services will publish said notice in a newspaper or newspapers as required by law prior to the Bid-Open Date once a week for a minimum of two weeks, commencing at least fifteen (15) days prior to the Bid Open Date. 4. Documents Available for Inspection by Bidders-Bid Set. The Architect shall provide a complete Bid Set to the Director of Facility Services and all other bid documents prepared by the Architect at least ten (10) business days prior to the date selected as the first day of publication of the Notice Inviting Bids; provided that the Director of Facility Services may waive this time limit. Upon approval of the Director of Facility Services, additional Bid Sets will be provided to Client in accordance with Article II.D Distribution of Bid Set. The Architect shall be responsible for making the Bid Set available for inspection by potential bidders. The Bid Set shall clearly specify the terms on which the Bid Set may be checked out by potential bidders, the amount of money deposits for checking out the Bid Set and the terms on which money deposits for the Bid Set will be forfeited to the District. The Architect shall use reasonable efforts in addition to newspaper notice to advise potential bidders, whom the Architect knows to be responsive and responsible Contractors, of the Notice Inviting Bids for the Client's Project. 6. Pre-bid Meeting. The Architect shall include the date of any pre-bid meeting in the Notice Inviting Bids. The Notice Inviting Bids shall specify the location of the pre-bid meeting. The Architect shall conduct the pre-bid meeting and shall be responsible for distributing any Addendum authorized by the Bid Set to the potential bidders. The Architect shall take minutes of the pre-bid meeting and deliver said minutes to the Director of Facility Services. The pre bid conference minutes shall be included in an addendum. 7. Bid Opening. The District shall conduct the bid opening. The Architect shall assist at the bid opening and prepare a table or schedule showing: a) The names of the Contractors who have inspected or received the Bid Set and any Addendum thereto. If a bidder has not inspected or received the Bid Set or any such Addendum, the Architect DO 2009 GZD agrmt (4) Page 5 of 29

6 shall so note. Names of contractors in attendance at the pre bid meeting and site inspections. b) Receipt or non-receipt of the ten percent (10%) Bid Bond. c) Receipt or non-receipt of the List of Subcontractors submitted by the bidder. d) Receipt or non-receipt of the Non-Collusion Affidavit submitted by the bidder. e) The amount of the base bid. f) The amount of each alternative bid. g) A roster of all persons who attended the bid opening and the capacity in which they attended. 8. Post Bid Opening. After each bid is opened, the Architect shall verify that the bid documents are in order prior to reading the amount of the bids. The Architect shall record any irregularities in the minutes of the bid opening. The Architect shall participate in a post bid interview with the owner and contractor. Prior to the next meeting of the Board, the Architect shall verify the validity of the General Contractor's License and Bond. After the Board accepts the successful bidder, the Architect shall send all the bids and Bid Bonds to the Director of Facility Services, and the Director of Facility Services will be responsible for returning the Bid Bonds to the bidders. 9. Signing the Contract Documents. Within such time as the Director of Facility Services shall specify, the Architect shall call a meeting with the successful bidder, and the Director of Facility Services for the purpose of obtaining Payment and Performance Bonds and executing the Contract Documents. The meeting shall be held at the District's Facilities and Planning Office. The Architect shall assemble and have present all documents necessary for distribution and signing at this meeting. The Architect shall conduct the meeting. The Architect shall be prepared to explain the construction administration procedures at the meeting. The Architect shall be prepared to distribute a Notice to Proceed at this meeting. The Architect shall supervise the signing of the Contract Documents at this meeting. 10. Definition of Contract Documents. "Contract Documents" means the following: a) Specifications (execution copies). b) Plans (execution copies). DO 2009 GZD agrmt (4) Page 6 of 29

7 c) Addenda (execution copies). d) Bid Documents (Notice Inviting Bids, Instructions to Bidders, Completed Bid Form, Bid Bond, List of Subcontractors). e) Construction Contract, including the Agreement, the general conditions, the supplemental conditions and any Addenda (execution copies) (hereinafter "the Contract"). f) Fully executed and completed Performance Bond. g) Fully executed and completed Payment and Materials Bond. h) Insurance Certificates and Policies showing that the Contractor has obtained all the insurance required by the Contract. i) Certification of compliance with Michelle Montoya School Safety Act. 11. Notary. The District shall provide a notary public at the signing, but the Architect shall be responsible, with the District's assistance, for determining that all documents needing a notary's signature have been notarized before the signatories leave the meeting. 12. Number of Copies. The Architect shall provide two (2) original sets of Contract Documents in bound form to the Director of Facilities. The Architect shall be responsible for confirming that each original set and each copy of the Contract Documents is identical. 13. Notice to Proceed. The Architect shall deliver the Notice to Proceed to the Contractor at the Contract signing meeting unless there is good cause not to do so. If necessary, the meeting may be continued until the Contract Documents are in order and the Architect determines that the Notice to Proceed should specify the start date, the start time and the completion date. 14. Agenda for Pre-Construction Meeting. The Architect shall prepare an agenda for the pre-construction meeting. 15. Pre-Construction Meeting. The Architect shall hold a preconstruction meeting as soon as practicable after service of the Notice to Proceed. The Architect shall keep minutes of the pre-construction meeting and send a copy of the minutes to the Director of Facility Services. The Contract signing meeting and the pre-construction meeting may be held on the same day. DO 2009 GZD agrmt (4) Page 7 of 29

8 16. Client and Architect agree the processes as set forth in Article II.D may be modified upon mutual agreement. E. Construction Administration Phase 1. The Architect shall reproduce the contract documents in the required number, the expense being borne as provided in Article XV, B ; and shall assist the Client in obtaining bids from contractors and in awarding the construction contracts. 2. The Architect shall provide technical direction to a project inspector paid by the Client. The Architect shall advise inspector and/or contractor in the preparation of a marked set of prints indicating dimensioned location of buried utility lines (record drawings) which shall be forwarded to the Client upon completion of the project. Architect and IOR, at reasonable intervals, will review site conditions and compare to contractor as-builts for purposes of confirming the reasonable accuracy of the as-builts prior to pay application approval. 3. The Architect shall: provide general administration of the construction contracts, including regular weekly visits during construction, to render architectural observation which is distinguished from the continuous personal inspection of the project inspector; make regular reports as may be required by applicable State agencies; keep the Client informed of the progress of construction; advise client regarding rejection of portions of the work which do not conform with the Contract documents, review schedules and shop drawings for compliance with design; approve substitution of materials, equipment, and the laboratory reports thereof; review and respond to RFI s (Request For Information) within 7 calendar days of receipt; prepare Request for Proposals and change orders for written approval of the Client; review and certify contractor s applications for payment; issue certificates for payment in amounts approved by the Architect; provide a color schedule of materials in the project for Client's review, modify as required for approval; determine date of substantial completion; make final observation of the project; review written guarantees, instruction books, diagrams, as built drawings and charts required of the contractors; and issue the Architect's certificate of completion and final certificate for payment. During construction, Architect shall conduct regular O.A.C. meetings to observe and discuss all appropriate Project issues, including work in progress, completed work, materials and submittals, pending change orders, and all other appropriate issues. The Architect shall make a written record of meetings, conferences, discussions and decisions made between or among the District, Architect, IOR and Contractor during all phases of the Project and concerning any material condition in the requirements, scope, performance and/or sequence of the work. The Architect shall DO 2009 GZD agrmt (4) Page 8 of 29

9 keep copies of the following logs: RFI s, submittals, Requests for Proposal, CCD s, ASI s and change orders. 4. The Architect, as part of his basic professional services, will assist the District in conducting an on site review to ascertain that deficient warranty items are documented prior to one year from the date of substantial completion. 5. The Architect shall not have control over 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, since these are solely the Contractor s responsibility under the Contract for Construction. The Architect shall not be responsible for the Contractor s schedules or failure to carry out the Work in accordance with the Contract Documents. The Architect shall not have control over or charge of acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 6. The Architect s certification for payment shall constitute a representation to the Owner, based on the Architect s observations at the site as provided in Subparagraph E.3 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 and the quality of Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certification for Payment shall further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate of Payment shall not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor s right to payment or (4) ascertained how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 7. The Architect shall review and approve or take other appropriate action upon Contractor s submittals of shop drawings, product data, and samples for the purpose of checking for conformance with the Construction Documents. The Architect s action shall be performed with reasonable promptness so as not to delay the work, but should allow for sufficient time in the Architect s professional judgment to permit adequate review. The Architect s review shall not constitute approval of DO 2009 GZD agrmt (4) Page 9 of 29

10 safety precautions or, unless otherwise specifically stated by the Architect, of construction means, methods, techniques, sequences or procedures. The Architect s approval of a specific item shall not indicate approval of an assembly of which the item is a component. When professional certification of performance characteristics of materials, systems or equipment is required by the Contract Documents, the Architect 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. 8. Substantial Completion - Punch List. When the Project is substantially completed, the Architect shall obtain a Punch List from the Contractor. The Punch List shall list all items to be completed or corrected. The Architect shall review and revise the list as necessary and shall advise the Director of Facility Services in writing of any defects, omissions, errors or changes that need to be made to the Punch List. 9. Notice of Completion and Final Payment. a. The Architect shall assist the District in preparation of the Notice of Completion. b. Time for Payment, The Contract shall provide that final payment to the Contractor is not due until the Board has approved the Notice of Completion, said notice has been filed, and 35 days from the date of filing said notice has elapsed. The Contract shall provide a reasonable period of time for the District to obtain a check for final payment from the County. c. Board Approval. The Director of Facility Services shall see that approval of final payment (including payment of the retainage) and approval of the Notice of Completion is placed on the agenda for the Board's regularly scheduled meeting after receipt from the Architect of the Certificate for Final Payment and the execution copy of the Notice of Completion. d. Delivery of Certificate and Notice. The Architect shall submit Contractor's Certificate of Final Payment, as approved by the Board, and a file stamped copy of the Notice of Completion, as recorded by the County Recorder, to the Director of Facility Services in a timely manner. 10. Contractor Claims Architect will respond to claims within the time limits and conditions set forth in General Conditions sections 4.5, 4.6, and 4.7. Architect shall participate in claims resolutions as defined in sections 4.8, and 4.9 of the DO 2009 GZD agrmt (4) Page 10 of 29

11 General Conditions. If the dispute involves deficiency in the architects work, the architect will not be compensated A Diagrams Architect will provide an updated set of 1A Diagrams reflecting all of the changes to the site associated with the project within 60 days of Notice of Completion. III. EMPLOYEES AND CONSULTANTS A. The Architect as part of the basic professional services shall furnish at his expense the services of the following consultants and any additional consultants required to complete the design: Architect: Structural Engineer: Mechanical Engineer: Electrical Engineer: Civil Engineer: Gaunt Zimmer Design. Ferrari Shields Beaudin Ganze Beaudin Ganze TBD IV. ARCHITECT'S DUTY TO COORDINATE REQUIREMENTS OF OTHER ENTITIES. The Architect shall exercise usual and customary care to coordinate the requirements of various public and private entities as they pertain to the Project to the extent such requirements apply. The aforesaid various entities include state, local and federal governmental entities, utility companies (including but not limited to gas, electric, telephone, cable, and water companies or districts), sewer districts, drainage districts, fire districts, refuse disposal, health department, and the like. The Architect shall determine if local zoning and building ordinances apply to the Project pursuant to Government Code Section and, if so, give an opinion as to compliance with such local ordinances and modify documents if required. The Architect shall assist the District in obtaining written cost commitments and approval of design as applicable or required from all involved entities, including CDE, DSA, fire Marshall, city/county public works departments and other like services for the Project. All cost commitments, approvals, and Agreements shall be forwarded to the Client. V. EXTRA SERVICES OF THE ARCHITECT The following services, if performed due to unusual circumstances and through no fault or neglect on the part of the Architect, cause the Architect extra expense and shall be paid for by the Client as provided in Article IX. DO 2009 GZD agrmt (4) Page 11 of 29

12 A. Plan preparation and/or construction contract administration work on that portion of a project let on a segregated bid basis, unless such segregated bids are found to be the result of negligence on the part of the Architect. B. Contract administration of the repair of damage to the project. C. The selection by the Architect at the Client's request of moveable furniture, equipment or articles, which are not included in the construction contract. The coordination in the design documents for the relocation of the existing cubicles and/or existing F&E and any work associated with relocation of the existing cubicles and/or existing F&E shall not be considered extra services. D. The additional services made necessary by the default of the Contractor or by major defects in the work of the Contractor or by failure of performance of either Owner or Contractor under the contract for Construction. E. If directed by the Client, the employment of special consultants, the preparation of special delineations and models, and overtime work by the Architect's employees. F. Providing contract administration services after the construction contract time has been exceeded by an unreasonable amount of time, through no fault of the Architect. G. Life cycle costing. H. Meetings with the District, District s consultants, and associated services beyond identifying areas within the project which may be appropriate for testing and beyond providing guidance for coordination and scheduling of testing. Coordination with the consultant defining scope of work and appropriate bid documents, etc. will be considered extra services. I. Assisting the district response to claims made by the contractor. If the dispute involves deficiency in the architect s work, the architect will not be compensated. VI. THE CLIENT'S RESPONSIBILITIES (See Attachment B ) A. The Client shall provide full information as to the requirements of the Project, including budget limitations and scheduling. (See attachment D) B. The Client shall furnish to the architect current as-built drawings of existing structures if such drawings are available to Client. C. The Client shall furnish, at client's expense, chemical, geotechnical, or other tests required for proper design, and borings or test pits necessary for determining subsoil conditions. DO 2009 GZD agrmt (4) Page 12 of 29

13 D. The Client shall furnish all inspection services. E. The Client shall furnish all legal advice and services required for the project. F. The Client shall notify the Architect of administrative procedures required and name a representative authorized to act in its behalf. The Client shall promptly render decisions pertaining thereto to avoid unreasonable delay in the progress of the project. The Client shall observe the procedure of issuing any orders to contractors only through the Architect. G. During the Contractor's one-year guarantee period, the Client shall notify the Architect in writing of apparent deficiencies in materials or workmanship for the purpose of conducting one-year warranty walk-thru. H The client shall advance all fees for securing approval of authorities having jurisdiction over the project. VII. CONSTRUCTION COST A. Construction cost as used in this agreement means the total cost to the Client of all work designed or specified by the Architect, including work covered by approved change orders and/or alternates, but excluding the following: any payments to Architect or consultants, for costs of inspections, hazardous materials observation, surveys, tests, and furnishings (soft costs). B. When labor or material is furnished by the Client below its market cost, the project construction cost shall be based upon current market cost of labor and new material. C. The construction cost shall be the acceptable estimate of construction costs to the Client as submitted by the Architect for each phase of design, until such time as the construction contract for the project is signed, whereupon it shall be the base construction contract amount. Only the previous design phase will be adjusted to the construction contract amount except as noted in item VIII C. VIII. PROBABLE COST OF CONSTRUCTION A. Estimates referred to in Article II may be prepared on a square foot/unit costs basis, or more detailed computation if deemed necessary by the Architect, considering prevailing construction costs and including all work for which bids will be received. It is understood that the project construction cost is affected by the labor and/or material market as well as other conditions beyond the control of the Architect or Client. B. If a project budget is set forth in Article I or thereafter accepted by the Client, the Architect shall review the estimate at each phase of their services. If such estimates, or bids are in excess of more than 10% of the project budget, the Architect at no additional cost to the owner shall revise the size of the project and DO 2009 GZD agrmt (4) Page 13 of 29

14 type or economy of materials, and re bid the project to come within 10% of the budgeted limit. C. If it is mutually agreed to value engineer the project after the bid to come within 10% of the budget, the cost for all such work shall be borne by the architect. Payment to Architect will be based on the lesser of the design budget plus 10%, or the post value engineering contract amount. IX. ARCHITECT'S COMPENSATION A. The Architect agrees to provide professional services described by this agreement and the Client agrees to pay the Architect for such services. Compensation shall be based on the Project Construction cost as defined in Article VII, and in accordance with Attachment A to this Agreement. B. Each portion of the project let separately on a segregated bid basis shall be considered a separate project for purposes of determining the fee. C. Furnishings, equipment or other items in the construction documents and not included in the construction contract, shall be paid hourly or as otherwise negotiated between Architect and Client. The coordination in the design documents for the relocation of the existing cubicles and/or existing F&E and any work associated with relocation of the existing cubicles and/or existing F&E shall are base services. D. The Client further agrees to pay the Architect compensation for extra services as provided by Article V only when approved in writing by the Client. E. Payments for extra services provided under Article V shall be agreed upon between the Client and Architect and shall be based on one of the following: 1. Percentage of the cost, in the same manner provided by this agreement for work let under a single construction contract. 2. Except as otherwise provided for herein, additional services will be compensated for on an hourly basis according to Architect s fee schedule current at the time of execution of this Agreement, attached as Attachment C % of the direct billings of consultants, which are not otherwise provided under Article IX.E.1 or E.2. F. Reimbursement at cost shall be paid to the Architect for: cents per mile for travel beyond Truckee 2. Out of Town Travel Lodging and Meal expense DO 2009 GZD agrmt (4) Page 14 of 29

15 G. Reimbursement at cost plus 10 % shall be paid to the Architect for: 1. Approved reproduction of drawings and specifications for agency approval, owner review, and bidding. 2. Special postage, messenger fees, long distance communications, and special graphics and models. H. Change Orders. Change Orders. At the completion of construction the total cost of the project shall be adjusted to reflect Change Orders so that the Architect receives extra compensation in accordance with the Agreement when the Change Order results in an increase in total cost. The total cost of the project will not be adjusted for deductive change orders; however, the Architect s fee will be reduced by the amount equal to the Construction Administration portion of the work eliminated by the change order. It is the intent of both parties that the Architect should be compensated for time spent designing the project regardless of whether all portions of the project are ultimately built. The Architect will be paid in accordance to the lowest percentage of the sliding scale fee used to determine the total fee for the project. In relation to all change orders, the Architect will not be paid for change orders that are attributable to Architect s negligent act, error or omission. Architect will not receive fee for change orders involving contractors overtime or hazardous materials abatement. Change Orders and related documentation pertaining to Change Orders shall be submitted by the Architect to the Director of Facility Services two weeks prior to regularly scheduled Board meetings or as otherwise agreed by the parties. Change Orders shall specify: 1. All items agreed to by the Contractor and the actual or anticipated date of completion. 2. Cost items shall be verified for accuracy and reasonableness. 3. Time extensions shall be reviewed by the Inspector. 4. Signature blocks shall be completed. 5. The Change Order shall be signed by the Contractor. 6. The Architect and any consultants retained by the Architect with responsibility for the Change Order shall indicate their approval of the scope and cost of any Change Order by signing it. If they disapprove of the scope or cost of the Change Order, they shall submit a written explanation for their disapproval. I. Suspension of Services DO 2009 GZD agrmt (4) Page 15 of 29

16 X. PAYMENTS TO THE ARCHITECT If Client fails to make undisputed payments when due, or otherwise is substantially or grievously in breach of this Agreement, the Consultant may suspend performance of services upon ten (10) business days written notice to Client. The Consultant shall have no liability whatsoever to Client for any costs or damages as a result of such suspension caused by substantial breach of this Agreement by Client. In the event Client elects to suspend the Project for over 90 days, then Client shall pay Architect all amounts due through the date of suspension, which amounts shall be calculated based upon Architect s percentage of completion. Upon reactivation of the Project, if ever, Client shall pay Architect a reasonable amount to compensate Architect for all expenses associated with remobilization, which amount shall be agreed upon by the parties upon suspension. A. Payments on account of the agreed compensation in Article IX shall be due thirty (30) days after receipt of invoice: 1. Schematic Design Phase - 10% of total compensation based upon the tentative estimated project construction cost. Billings shall be monthly or lump sum in arrears, up to 10% of the total compensation, based upon work completed. 2. Design Development Phase - increase to 25% of total compensation based upon the preliminary estimated project construction cost. Billings shall be monthly or lump sum, in arrears, up to 25% of the total compensation, based upon work completed. 3. Construction Documents Phase - a. Construction Documents 50% complete - increase to 45% of the total compensation based upon the estimated project construction cost. Billings shall be monthly or lump sum, in arrears, up to 45% of total compensation, based upon work completed. b. Construction Documents 100% complete, ready for review by applicable public agencies - increase to 60% of the total compensation based upon the estimated project construction cost. c. Third Party or owners quality control/plan review comments responded to and or incorporated into the documents. Increase to 65% of the total compensation based upon the estimated project construction cost. d. Construction documents approved by the Division of the State Architect, increase fee to 70% of the total compensation based upon the estimated project construction cost. DO 2009 GZD agrmt (4) Page 16 of 29

17 3. Bidding Phase 5% increase to 75%. On all or that portion of the project for which documents have been reproduced and bids received, increase to 75% of total compensation adjusted to the accepted bid price. 5. Construction Administration - a. Subsequent billings shall be submitted monthly, in arrears, in proportion to the amount of work certified complete. b. Construction complete and accepted by Client - increase to 95% of the total compensation, based upon the contract price, notwithstanding the Architect's services during the guarantee period as provided by Article II.E.4. c. Final DSA project approval/closeout increase to 100% of the total compensation. B. Reimbursement for fees and other expenses shall be made to the Architect as incurred. C. Final payment to the Architect, as required by paragraph X.A.5.c. of the Agreement, shall be made by the District after the Notice of Completion is approved by the Board, and DSA has given its final approval of the project. XI. TERMINATION OF AGREEMENT A. This agreement may be terminated by either party upon written notice to the other party in the event of a substantial failure of performance by such other party; or if the Client should decide to abandon or indefinitely postpone the project. B. In the event of such termination, the Client shall pay to the Architect as full payment for all services performed and all expenses incurred under this agreement an amount the sum total of which bears the same ratio to the total fee otherwise payable under this agreement as the services actually rendered hereunder by the Architect bear to the total services necessary for the full performance of this agreement, plus any sums due the Architect for extra services described under Article IX, B. and C. herein. In ascertaining the services actually rendered hereunder up to the date of termination of this agreement, consideration shall be given to both completed work and work in process of completion and to complete and incomplete drawings and other documents whether delivered to the Client or in the possession of the Architect. DO 2009 GZD agrmt (4) Page 17 of 29

18 Notwithstanding any termination of this agreement of notice thereof, questions in dispute may be submitted to arbitration as provided in Article XVI. C. If, upon payment of the amount required to be paid under this Article following the termination of the agreement, the Client thereafter should determine to complete the original project or substantially the same project, the Client for such purpose shall have the right of utilizing any completed drawings, specifications, estimates and other completed contract documents prepared under this agreement by the Architect who shall make them available to the Client upon request without additional compensation. Refer to Paragraph XVI.A for ownership of documents and re-use. C. Client reserves the absolute right to terminate the Agreement without cause, upon seven (7) days written notice. In the event of termination without cause, Architect shall be entitled to payment for all services performed and reimbursable expenses incurred prior to the date of termination. Architect shall be entitled to an additional 3 percent (3%) compensation for all services performed prior to date of termination. If the Agreement is terminated by Client for default, and it is later determined that the default termination was wrongful, such termination automatically shall be converted to and treated as a termination for convenience under this section and Architect shall be entitled to receive only the amounts payable hereunder in the event of a termination for convenience provided Client exercised its right of termination in good faith. XII. TIME SCHEDULE Upon request, the Architect will prepare for the Client an estimated time schedule necessary to complete the contract documents, and construction plans barring delays caused by conditions beyond the control of the Architect. XIII. ACCOUNTING RECORDS OF THE ARCHITECT Records of the Architect's direct personnel, consultant, and reimbursable expense pertaining to services on this project and records of accounts between the Client and contractor shall be kept on a generally recognized accounting basis and shall be available to the Client or his authorized representative at mutually convenient times. XIV. INSURANCE TO BE CARRIED BY ARCHITECT The Architect shall carry insurance to protect himself from claims under Worker's Compensation Acts. Architect shall procure and maintain insurance on all of its operations during the progress of the services, for the following minimum insurance coverages: 1) workers compensation insurance and occupational disease insurance as required by law and employer s liability insurance with minimum limits of $500,000.00; 2) broad form commercial general liability insurance, with limits of not less than $1 million per DO 2009 GZD agrmt (4) Page 18 of 29

19 occurrence and $2 million in the aggregate; and 3) commercial automobile liability insurance, including all hired and non-owned vehicles, with limits of not less than $1 million per occurrence and $2 million in the aggregate. If not covered separately under a commercial automobile liability policy, the commercial general liability policy shall be endorsed to include non-owned and hired automobile liability. All policies of commercial general liability insurance shall name Client as an additional insured and shall provide that such policy is primary insurance. Architect also shall provide Professional Liability Insurance, written on a Claims Made Basis with limits of not less than $1,000, per claim and in the aggregate and covering those liabilities to the extent caused by the negligent acts, errors, or omissions of Architect, its employees, consultants, and all persons for whose acts Architect may be liable in connection with the carrying out of their professional responsibilities under the Agreement. All such professional liability policies shall provide coverage retroactive to the date of commencement of Architect s services under the Agreement and shall be maintained for a period of three years after the date of the earlier of the issuance to the Client of the final certificate for payment or 60 days after the date of substantial completion of the work under the Agreement to the extent that such coverage is reasonably available at similar rates and premiums. Owner and Architect have discussed their risks, rewards, and benefits of the project and the Architect s total fee for services. The risks have been allocated such that the Owner agrees that, to the fullest extent permitted by law, Architect s total liability to Owner for any and all injuries, claims, losses, expenses, damages, or claim expenses arising out of this Agreement from any cause, shall not exceed the total amount of $250,000. Such causes include, but are not limited to, Architect s negligence, errors, omissions, strict liability, breach of contract or breach of warranty. To the extent that any such injuries, claims, losses, expenses, damages, or claim expenses are covered by any of the insurance coverages provided or maintained by the Architect, other than professional liability insurance, the total liability limitation shall be increased to the combined limit of any such coverages. Architect shall provide Certificates of Insurance, or other evidence of insurance, as requested by Client. The certificates shall provide that there will be no cancellation of coverage without 30 days prior written notice to Client. In the event that the limits of coverage as expressed in writing on the Declaration Page of policy are to be reduced or modified, Architect will provide 30 days written notice in advance of such reductions or modifications. XV. REPRODUCTION OF DOCUMENTS A. The District shall pay for owner review sets at design development, 50% construction documents and DSA submittal documents, 100% construction documents, bid sets, and sets for agency, utility, and owner consultant review as a reimbursable expense. DO 2009 GZD agrmt (4) Page 19 of 29

20 B. The Architect shall supply at no cost to owner and/or the contractor awarded the project an electronic copy of the plans to be used by the contractor and its sub contractors for shop drawings and as builts. XVI. OWNERSHIP OF DOCUMENTS A. The Design Professional s liability posed by the unauthorized reuse of the Instruments of Service is too great to be adequately insured. However, Architect is willing to agree to a transfer-of-ownership clause allowing the Client ownership of the plans and specifications as follows: Client acknowledges the Architect s construction documents as instruments of service. Nevertheless, the plans and specifications prepared under this Agreement shall become the property of Client upon completion of the work and payment in full of all monies due to the Architect. Client shall not reuse or make any modifications to the plans and specifications without the prior written authorization of the Architect which authorization shall not be reasonably withheld. Client agrees, to the fullest extent permitted by law, to indemnify and hold the Architect harmless from any claim, liability or cost (including reasonable attorneys fees and defense costs) arising or allegedly arising out of any unauthorized reuse or modification of the construction documents by Client or any person or entity that acquires or obtains the plans and specifications from or through Client without the written authorization of the Architect XVII. DISPUTE RESOLUTION A. Claims, demands for monetary compensation or damages or disputes over interpretation of the Agreement or the parties respective rights, duties or obligations (collectively claims ) arising from or related to the Agreement shall be decided by the parties in accordance with this section. Initially, and promptly after identification of a claim, Client s project manager and Architect s project manager shall meet face-to-face to review and consider the claim. This meeting shall occur at the earliest practicable date and shall be for the express purpose of: (1) exchanging and reviewing all pertinent documents and information relating to the matters and issues in dispute, (2) freely and candidly discussing each party s position; and (3) reaching agreement upon a reasonable, compromise resolution of the claim. If the project managers are unable to resolve the claim, a senior representative from Client and a senior representative from Architect each shall review the claim in detail and then meet face-to-face to discuss and resolve the matter. This meeting of senior management representatives shall occur no later than 15 days after the meeting of the project managers, unless the parties both agree upon a longer period of time. For purposes of this section, each party to this Agreement shall designate a senior representative, should the project managers be unable to resolve the claim. Either party may, if necessary, designate a different senior representative at any time during the course of the project. If any claim remains unresolved after the meeting of the senior management representatives, Client and Architect agree promptly to submit the matter to mediation by an experienced, mutually acceptable mediator. Unless the DO 2009 GZD agrmt (4) Page 20 of 29